11 U.S.C. § 362

A creditor seeking to modify the automatic stay bears the burden of proof on the debtor’s equity in the property, while the debtor bears the burden on the remaining issues.

Fisher v. Riveroak Investment Corp. (In Re Riveroak Investment Corp.) · filed 1980-07-15(g)(1)

Plaintiff has carried its burden on the issue of the debtor’s equity, as is required by § 362(g)(1), and the debtor has failed to carry its burden on proof of the remaining issues. It follows that plaintiff is entitled to an order modifying the automatic stay in order that it may proceed with its mortgage foreclosure.

Section 362(g)(1) places the burden of proving the debtor’s equity in property on the party requesting relief from the automatic stay.

Latimer & Buck Mortgage Co. v. Conway (In Re Conway) · filed 1980-07-17(g)(1)

Thus, plaintiff, Latimer, has the burden of proof on the issue of the debtor’s equity in the property. Latimer’s failure to establish a record or to present any evidence whatsoever, compels a finding that plaintiff has not met its burden of proof (risk of non-persuasion) on that issue.

Section 362 permits relief from the automatic stay so a landlord may pursue eviction when the lease was terminated before the bankruptcy petition and the debtor has no interest in it.

Sarasota-Manatee Airport Authority v. Racing Wheels, Inc. (In Re Racing Wheels, Inc.) · filed 1980-07-23

Accordingly, this Court is satisfied that inasmuch as the lease had been effectively terminated prior to the filing of the petition for order for relief under Chapter 11 and that the debtor-in-possession, therefore, acquired no interest in lease, that the relief prayed for by the Authority should be granted and the automatic stay of § 362 should be lifted to permit the Authority to continue its proceedings to remove the Debtor from the premises.

Section 362 permits relief from the automatic stay to allow foreclosure on a rejected contract for deed despite the estate’s retained interest in the property, which the trustee can protect in the foreclosure action.

Ben-Dak Investment Co. v. Vertich (In Re Vertich) · filed 1980-08-22

This Court holds that Plaintiff is granted relief from the automatic stay and allowed to proceed to foreclose on the Contract for Deed. The Trustee should treat whatever interest the estate may have in the property as an asset of the estate and handle that asset through the normal course of his administration of the estate. The Trustee can adequately protect his interest by intervening in the state foreclosure action and asserting whatever legal rights the Trustee may have under equitable or state law.

A creditor is adequately protected against the automatic stay when the property value substantially exceeds the total secured debt.

In Re Ware Spaces, Inc. · filed 1980-07-09(d)(1)

Debtor has shown sufficient evidence of adequate protection for Rainbow at this time. Since the total liability amounts to approximately $2,383,421.00- and there was an offer to purchase at the foreclosure sale for $3,300,000.00, Rainbow is adequately protected for the time being.

Section 362 permits modification of the automatic stay so a state court can determine whether a lease terminated before the bankruptcy filing.

Federated Stores Realty, Inc. v. Final Touch Boutique, Inc. (In Re Final Touch Boutique, Inc.) · filed 1980-10-23(d)

We agree with plaintiff that reference must be made to state law in concluding whether or not a valid leasehold interest exists for the trustee to assume under § 365 and which would trigger the automatic stay of § 362(d). ... Therefore we conclude that the plaintiff ought to be permitted to complete its action in state court and from that court obtain a determination of whether or not the subject lease had been terminated prior to August 21, 1980 and is therefore not within the jurisdiction of this court.

The automatic stay may be modified to allow a civil suit against the debtor to proceed to the extent of liability insurance coverage when the suit will not harm the bankruptcy estate, but the plaintiff may not collect personally from the debtor.

Jessie v. Honosky (In Re Honosky) · filed 1980-10-23(a)(1)

Thus, though the liability to the Plaintiff is dischargeable in bankruptcy, the automatic stay will be modified to permit the Plaintiff to proceed with her suit in the Circuit Court of McDowell County to the extent of the Debtor’s insurance coverage. The Plaintiff may not take any step toward collecting any judgment personally from the Debtor, however, nor may the issue of dischargeability be raised in another court.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor has no lease or right to possess the property.

Carpenter v. Youngs (In Re Youngs) · filed 1980-10-31(d)(1)

But where, as here, the property cannot be said to be vital to a plan of reorganization, and there is sufficient cause to allow relief, in light of the fact that there is no lease agreement nor has there ever been a landlord-tenant relationship between' plaintiff and defendant, I am of the opinion that plaintiff’s request should be allowed.

Section 362(e) contemplates a ruling on a complaint for relief from the automatic stay within 30 days.

Littleton National Bank v. Coleman American Companies, Inc. (In Re Coleman American Companies, Inc.) · filed 1980-11-12(e)

Section 362(e) of the Bankruptcy Code (11 U.S.C. § 362(e)) contemplates a ruling on a complaint for relief from stay within 30 days.

Section 362 provides no ground to lift the automatic stay for a prepetition personal action while the bankruptcy court decides whether the debt is dischargeable.

Bankers Life & Casualty Co. v. D'Andrea (In Re D'Andrea) · filed 1980-12-12

The Court sees no reason why the automatic stay in this case should be raised. This is a personal action against the Debtor resulting from alleged pre-petition conduct. ... The Court therefore finds no compelling reason in logic or in law, and certainly none under 11 U.S.C. § 362, why it should delay its ruling on the dischargeability of this matter until after an action is entertained elsewhere on the validity of the Plaintiff’s general claims.

Section 362(d)(1) permits relief from the automatic stay for cause when a lease terminated before bankruptcy cannot be assumed or rehabilitated.

Kearny Mesa Crossroads v. Acorn Investments (In Re Acorn Investments) · filed 1981-01-22(d)(1)

Secondly, because a debtor cannot rehabilitate a lease which has already expired under Section 365, there is no need to allow the stay to remain in effect with regard to that lease. This inability to assume has already been termed adequate “cause”, under Section 362(d)(1), to warrant a lifting of the stay.

Section 362(d)(1) allows relief from the automatic stay when proposed plan payments fail to adequately protect a constructive-trust beneficiary’s interest in estate property.

Collomb v. Wyatt (In Re Wyatt) · filed 1980-11-19(d)(1)

Premised on the foregoing, the indubitable equivalent of plaintiff’s interest in debtors’ real property would be the payment of $7,274.80 by the debtors. Since the debtors only proposed to pay 40 percent of the plaintiff’s interest in said property, the debtors have failed to propose a method of adequately protecting plaintiff’s interest under subdivision (3) of § 361, and thus plaintiff is entitled to relief from the automatic stay pursuant to § 362(d)(1).

Section 362’s automatic stay may be terminated when property is transferred to a debtor solely to invoke the stay and frustrate a secured creditor’s foreclosure.

Highway Construction Co. v. White (In Re White) · filed 1981-01-28

The corporate quit claim deed from JDI to Mary White, only hours before the foreclosure sale, was for the sole purpose of obtaining the protection of the automatic stay of 11 U.S.C. § 362. ... Therefore, the automatic stay of § 362 should be terminated forthwith.

Section 362(d)(1) permits the stay to continue when other collateral adequately protects the creditor’s interest and no other cause for relief appears.

American Security Bank, N. A. v. Robson (In Re Robson) · filed 1981-02-03(d)(1)

It appearing from the evidence that the bank’s security interests in the shares of stock of the debtors were adequately protected by its mortgage and security interests in most of the assets of Mobile F/S and no other “cause” appearing from the evidence or being alleged, the bank was not entitled, under Subsection (d)(1), to relief from the stay provided by Subsection (a) of Section 362.

Relief from the automatic stay is justified when a lease was validly terminated before the bankruptcy filing, leaving the debtor with no leasehold interest to protect.

308 West Randolph Building Venture v. Victory Pipe Craftsmen, Inc. (In Re Victory Pipe Craftsmen, Inc.) · filed 1981-02-03

This court agrees with those cases which have concluded that if the lease has been validly terminated, there is nothing for the debtor to assume. Therefore, relief from the automatic stay is justified.

Section 362(d)(1) permits relief from the automatic stay for cause so a landlord may seek recovery of leased premises in state court when the debtor defaulted on rent before filing for bankruptcy.

Oak Summit Apartments v. Rush (In Re Rush) · filed 1981-02-19(d)(1)

Hence, just as a mortgagee would be entitled to foreclose on a debtor’s realty for pre-petition arrearages, we conclude that the landlord is entitled to relief from the automatic stay in order to permit it to proceed in state court to recover premises leased by the debtor from the landlord where the debtor is in pre-petition default in the payment of rent.

In a § 362 relief from stay proceeding, the court may sever complex counterclaims and related affirmative defenses for separate trial and decide whether to modify the stay without resolving those claims first.

Hoyt, Inc. v. Born (In Re Born) · filed 1981-02-20

Taking all these matters into consideration it is the conclusion of the court that the complex counterclaims and affirmative defenses of the defendants in these proceedings must be severed from the complaints to modify the stay and that the trials of the modification of the stay complaints must proceed without regard to either the counterclaims or the affirmative defenses regarding coercion, estoppel, unconscionability and fraud.

Section 362(d)(1) permits modification of the automatic stay for cause to let a nearly completed state court action liquidate a claim when starting over in bankruptcy court would waste time and expense.

Brodsky v. Philadelphia Athletic Club, Inc. (In Re Philadelphia Athletic Club, Inc.) · filed 1981-02-24(d)(1)

We disagree with the debtor’s contentions and conclude that it will be in the best interests of all parties concerned to modify the stay to permit the state court action, now almost concluded, to proceed to a conclusion. ... To require the state court plaintiff to start those proceedings all over again in this court will clearly be a waste of judicial and legal time and effort.

Under § 362(d), hardship from moving does not defeat relief from the automatic stay when the creditor has otherwise established its right to relief.

Brokers Mortgage Service v. Schwartz (In Re Schwartz) · filed 1981-03-11(d)

The defense which the debtor has offered — that because of the equipment involved it will be difficult to move — is not a proper defense to a complaint for relief from the stay under § 362(d). Hardship to the debtor alone is not a reason for denying relief from the stay where the creditor has otherwise established its right to that relief.

Section 362 permits a court to treat a complaint as a request for relief from the automatic stay and modify the stay to allow a pending state court case to proceed.

Warren v. Taff (In Re Taff) · filed 1981-03-13

The complaint of the plaintiff will be treated as a request for relief from stay, and the court hereby modifies the automatic stay to allow the pending case in the state court to proceed.

Section 362(d)(1) permits the stay to remain in place when proposed periodic mortgage payments and FHA mortgage insurance adequately protect the mortgagee’s interest.

Commonwealth of Pennsylvania State Employes' Retirement Fund v. Roane (In Re Roane) · filed 1981-02-20(d)(1)

The issue before us is whether we should grant relief from the automatic stay imposed by § 362(a) of the Bankruptcy Code (“the Code”) to permit the mortgagee to foreclose on the debtors’ residence. We conclude that the mortgagee is not entitled to such a modification of the stay because (1) it has failed to prove that the debtors lack equity in the property and (2) its interest in the property is adequately protected by the offer of the debtors to make periodic payments on the mortgage and by the FHA mortgage insurance which the mortgagee has on its mortgage.

Section 362(a)(3) and (a)(4) cease to stay a residential landlord’s action for postpetition rent defaults after the trustee rejects the lease and the lease leaves the bankruptcy estate.

Rich Mar Apartments v. Knight (In Re Knight) · filed 1981-02-10(a)(3), (a)(4)

As a result, the lease is no longer property of the estate, and the stay imposed by § 362(a)(3) and § 362(a)(4) is no longer applicable. Thus, following the abandonment, a residential landlord may enforce his rights under the lease with respect to post-petition defaults without the necessity of seeking relief from stay in a Bankruptcy Court.

Section 362(d)(1) permits relief from the automatic stay for cause when the secured creditor’s interest is not adequately protected.

Fidelity Bond & Mortgage Co. v. Britton (In Re Britton) · filed 1981-02-20(d)(1)

Accordingly, in the absence of proof that the interests of the secured creditor are “adequately protected,” the request for relief from the stay will be granted.

Section 362(d)(2) does not authorize relief from the stay for lack of equity when the debtor retains value in a leasehold through continued payment of its lease obligations.

Cheshire Associates v. Cheshire Molding Co. (In Re Cheshire Molding Co.) · filed 1981-02-25(d)(2)

As long as Heilig continues to fulfill Molding’s obligations under the lease, Molding has an equity in the leasehold. If Molding is able to market its leasehold interest at the fair market value, proceeds of the sale will provide a substantial dividend to creditors. Associates has not borne its burden of proving that there is no equity for the debtor-in-possession.

Section 362 permits the bankruptcy court to lift the automatic stay so a secured creditor can foreclose when the debtor has failed to protect the creditor’s interest and has stopped making payments.

Fidelcor Mortgage Co. of Georgia v. Godfrey (In re Godfrey) · filed 1981-03-17

Since the debtor has made no effort to adequately protect Fidelcor, and more than thirty days has elapsed since Fidelcor filed its complaint for relief from stay, since the debtor has made no payments on its debt to Fidelcor in over two years, and since the debtor has prevented Fidelcor from foreclosing its security interest by successive filings in this Court, it is hereby ORDERED AND ADJUDGED that summary judgment on the debtor’s counterclaims is granted in favor of Fidelcor and against the debtor. IT IS FURTHER ORDERED AND ADJUDGED that the automatic stay of 11 U.S.C. § 362(a) shall be and is lifted to allow Fidelcor to foreclose on the subject property.

Under § 362(d)(2)(A), secured debt at least equal to the collateral’s value establishes a lack of equity for relief from the automatic stay.

Northern National Bank v. Goodwin (In re McBreairty) · filed 1981-03-24(d)(2)(A)

The court concludes that plaintiff is the holder of valid mortgages upon which the indebtedness due at least equals the value of the collateral. See Bankruptcy Code § 362(d)(2)(A), 11 U.S.C. § 362(d)(2)(A) (1979).

Section 362(g) places the burden of proving a debtor’s lack of equity or interest in property on the party seeking relief from the automatic stay.

Provident National Bank v. Kirby (In Re Kirby) · filed 1981-03-27(g)

Since Provident, as the party requesting relief from the stay, has the burden of proof on the issue of the debtor’s lack of equity or interest in the property, ... its failure to present any evidence on that issue is fatal to that portion of its complaint which seeks modification of the automatic stay.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor fails to make mortgage payments and pay fire insurance on the secured property.

First Federal Savings & Loan Ass'n of Chester v. Hayden Development Co. (In re Hayden Development Co.) · filed 1981-04-28(d)(1)

Debtor’s failure to remit mortgage payments to First Federal since November of 1979 and to pay 1980 fire insurance constitutes cause for the lifting of the stay pursuant to § 362(d)(1).

Section 362(d) permits the automatic stay to remain in place when a senior secured creditor is fully secured by appreciating property and a short delay in foreclosure is unlikely to harm it.

Wolford v. Wolford Enterprises, Inc. (In Re Wolford Enterprises, Inc.) · filed 1981-04-16(d)

The Plaintiffs assert the lack of adequate protection of their interests, the Debtor’s lack of equity in the property, and its unimportance to the Debtor’s effective reorganization. The Defendants successfully refute these assertions. ... In point of fact, the Plaintiffs’ debt, absent an unforeseen change in circumstance, is fully secured. Of significance also is the likelihood that the value of the property will not diminish over time. ... For all of the foregoing reasons, the Court declines to lift the automatic stay at this time.

Section 362(a) does not permit a debtor to use the automatic stay through a Chapter 13 filing solely to delay foreclosure when the debtor has no intent or possibility of carrying out a Chapter 13 plan.

In Re Whitten · filed 1981-05-20(a)

However, a debtor may not file a Chapter 13 petition and receive the benefits of the automatic stay provision of 11 U.S.C. § 362 when he has no intent nor any possibility of effectuating a Chapter 13 plan.

Section 362’s automatic stay is violated by repossession of a debtor’s vehicle when the creditor has sufficient knowledge of an imminent bankruptcy to trigger a duty to inquire.

Brooks v. Ford Motor Credit Co. (In Re Brooks) · filed 1981-06-16

The Court finds that defendant had sufficient knowledge that a bankruptcy was imminent to put it on notice with a duty to inquire. ... The repossession was a violation of the automatic stay imposed by 11 U.S.C. § 362.

Section 362(d)(1) does not allow a creditor to obtain relief from the automatic stay through an installment sales clause that declares default upon the debtor’s bankruptcy filing.

Riggs National Bank of Washington v. Perry (In Re Perry) · filed 1983-04-22(d)(1)

Accordingly, the Court holds that clauses appearing in installment sales agreements which provide that upon commencement of bankruptcy proceedings the purchaser shall be in default under the contract, violate the policy underlying Section 362 of the Bankruptcy Code, and as such, are unenforceable as a matter of law.

Section 362(d)(1) allows relief from the automatic stay for a debtor’s bad faith, but counsel’s statements and an attempt to relitigate state court claims alone do not establish it.

In the Matter of Little Creek Development Company, Debtor. Little Creek Development Co. v. Commonwealth Mortgage Corp. · filed 1986-01-03(d)(1)

Standing alone, the conclusions of the bankruptcy court in this case, based solely on the statements of the debtor’s counsel and the litigation tactic of attempting to retry the state court action in the course of the hearing on the motion for relief from the stay, did not provide sufficient evidence to show lack of good faith.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor continues to miss required payments to a secured creditor, depending on the circumstances.

In Re Lexington Racquetball Club, Inc. · filed 1986-02-27(d)(1)

We have repeatedly held that the continued failure to tender periodic payments to a secured creditor pursuant to the terms of an underlying loan may constitute “cause” for relief under § 362(d)(1), although the facts of each request will determine whether relief is appropriate under the circumstances.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor files a Chapter 11 petition without good faith.

Knee v. Bradley (In Re Bradley) · filed 1986-04-24(d)(1)

As such, it is reasonable to conclude that conduct which would warrant a dismissal of the entire Chapter 11 case for “cause” on the basis of a lack of good faith is sufficient to satisfy the “cause” requirement for relief from stay under § 362(d).

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor fails to make required periodic mortgage payments to a secured creditor.

In Re Graves · filed 1986-04-25(d)(1)

Under the facts of this case the debtor’s failure to make the requisite monthly payments on the mortgage constitutes “cause” for granting relief from the automatic stay.

Section 362(d)(1) permits relief from the automatic stay for cause when allowing a state court to enter judgment on a claim it has already extensively considered avoids duplicating that work in bankruptcy court.

Elegant Concepts, Ltd. v. Kristiansen (In Re Elegant Concepts, Ltd.) · filed 1986-04-30(d)(1)

Cause exists by virtue of the necessity for resolving, before this present reorganization proceeding can be brought to a conclusion, the amount of money owed Kristiansen by the debtor as a result of the debtor’s election to purchase Kristiansen’s stock. The magnitude of that obligation has been the subject of extensive hearings by the state court. For this Court to try to duplicate that effort would be a waste of the resources of this Court and of the parties. Such duplication can be avoided by permitting a judgment to be entered subject to whatever rights of appeal the debtor may have to canvass in the state court whether the election was proper or whether it can be rescinded on the ground of mistake of fact and/or law.

Section 362(d)(1) permits relief from the automatic stay for cause when a lessor proves a significant lease default, particularly after the debtor fails to obtain assumption of the lease.

In Re Future Growth Enterprises, Inc. · filed 1986-05-23(d)(1)

Under § 362(d)(1) “cause” for relief from the automatic stay is present when the lessor proves that the debtor is significantly in default under the lease, particularly when the debtor has failed to move successfully for assumption of the lease.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor files a Chapter 11 case in bad faith.

In Re Sar-Manco, Inc. · filed 1986-05-27(d)(1)

For the reasons set forth above, the Court concludes that the Debtor’s pending Chapter 11 case was filed in bad faith. This constitutes “cause” within the meaning of § 362(d)(1) for lifting the automatic stay. Therefore, FOWLER’s motion for relief from stay should be granted.

A claimed state law priority alone does not establish cause to lift the automatic stay without considering plausible harm to the debtor or other creditors.

15 Collier bankr.cas.2d 273, Bankr. L. Rep. P 71,218 Domenico Tringali v. Hathaway MacHinery Company, Inc., (Two Cases) · filed 1986-06-30(d)(1)

Given these policies underlying federal bankruptcy law, the simple conclusory assertion that state law would give Tringali a priority cannot (standing alone without some consideration of the plausible claim of harm by Hathaway or other creditors) provide 'cause' for lifting the stay.

A party seeking to modify the automatic stay for cause must establish a legally sufficient basis for relief; if it does, the debtor must show entitlement to the stay.

In Re CLC of America, Inc. · filed 1986-08-26(d)(1)

In determining whether cause exists for modifying the stay, Lakeshore has the burden of establishing a legally sufficient basis for such relief. Were Lakeshore to meet that burden, CLC would have to demonstrate that it is entitled to the stay.

Post-confirmation payment defaults constitute cause to lift the automatic stay.

In Re Davis · filed 1986-08-27(d)(1)

Manifestly, the debtors’ failure to make post-confirmation payments will also constitute cause for lifting the stay.

Section 362(d) provides no cause to lift the automatic stay for a secured creditor under a confirmed Chapter 13 plan when the debtors are current on plan payments.

D. Davis Furniture Co. v. Walker (In re Walker) · filed 1986-09-05(d)

Where there is a confirmed Chapter 13 plan in this court, this creditor could not secure relief from that automatic stay, relief which it might seek pursuant to § 362(d), because debtors are current in their payments to the trustee. There being no default in the performance by debtors in their obligations in respect to the Chapter 13 plan, there is no “cause” for § 362(d) relief.

Section 362(d)(1) allows relief from the automatic stay for lack of good faith only when the debtor clearly abuses the bankruptcy process.

In Re Arnold · filed 1986-12-19(d)(1)

The debtor's lack of good faith in filing a bankruptcy petition has often been used as cause for removing the automatic stay. ... Good faith is lacking only when the debtor's actions are a clear abuse of the bankruptcy process. See id. Here, there is no abuse of the bankruptcy process. The Arnolds have used the land productively to repay creditors while the stay is in place. There is no showing of bad faith.

Section 362(d)(1) permits relief from the automatic stay for cause, including lack of adequate protection of a secured creditor’s interest.

Tifco, Inc. v. U.S. Repeating Arms Co. (In Re U.S. Repeating Arms Co.) · filed 1986-12-22(d)(1)

But Code § 362(d)(1) permits relief from the automatic stay for cause, including lack of adequate protection.

Section 362(d)(1) allows the stay to be lifted for cause when a Chapter 13 debtor significantly defaults on postpetition mortgage payments and cannot cure the default within a reasonable time, despite having substantial equity in the property.

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

Under these circumstances, the Movant has shown “cause” for lifting of the stay under Section 362(d)(1) of the Bankruptcy Code (11 U.S.C. Section 362(d)(1)).

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor filed its bankruptcy petition in bad faith.

Federal Land Bank of Jackson v. Choctaw Boundary Farms, Inc. (In Re Choctaw Boundary Farms, Inc.) · filed 1987-01-29(d)(1)

The Court further finds that the lack of good faith constitutes “cause” and therefore the Court determines that FLB’s motion to remove the automatic stay is well taken and should be sustained pursuant to 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay for missed postpetition payments but does not require relief whenever payments are late.

In Re Kanuika · filed 1987-08-03(d)(1)

The failure to make timely postpetition payments does not mandate relief under § 362(d)(1), although it is grounds for such relief.

Section 362(d)(1) does not provide cause to lift the automatic stay when a debtor is current on a secured debt and the creditor relies on the bankruptcy filing itself as the alleged default.

Century Bank at Broadway v. Peacock (In Re Peacock) · filed 1988-06-21(d)(1)

The Court is required under Section 362(d)(1) to grant relief from the automatic stay for “cause.” For the reasons set forth above, particularly the conclusion that the Debtors have not defaulted under the bankruptcy default clause of their Contract with the Creditor by virtue of filing a bankruptcy petition, “cause” for relief has not been established in this proceeding.

Section 362(d)(1) permits relief from the automatic stay when debtors make no mortgage payments and offer no way to resolve the delinquency.

Frascatore v. Secretary of Housing & Urban Development (In Re Frascatore) · filed 1989-04-13(d)(1)

No proposal of the Debtors to resolve the payment delinquency appears in this record; their Plan is obviously dependent on the unachievable result that the sheriff’s sale of their home be set aside. Relief must therefore be granted to HUD.

Judicial economy may provide cause to lift the automatic stay under § 362(d)(1), even by itself.

In Re United States Brass Corp. · filed 1994-12-19(d)(1)

The factor of judicial economy may be considered in deciding whether to lift the automatic stay; in fact, a decision to lift the stay may be upheld on this ground alone.

Section 362(d)(1) permits modification of the automatic stay to allow a tax purchaser to obtain a tax deed after the debtor’s redemption period expires without redemption.

In Re Milne · filed 1995-02-03(d)(1)

Since the last date for redemption has passed, and the Debtors failed to redeem, the stay should be modified to permit Johnson to obtain a tax deed.

A previously filed arbitration proceeding alone does not establish cause to lift the automatic stay under § 362(d)(1).

Emplexx Software Corp. v. AGI Software, Inc. (In Re AGI Software, Inc.) · filed 1995-11-03(d)(1)

The mere fact that Emplexx has previously filed an arbitration proceeding in Florida does not, of itself, constitute “cause” so to entitle Emplexx to pursue its claim at this time in that forum, rather than through the claims procedure in this Court.

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

In Re 1567 Broadway Ownership Associates · filed 1996-11-07(d)(2)

A bankruptcy court, in determining whether to lift the automatic stay, must consider whether the requirements of Section 362(d) of the Bankruptcy Code have been met. The stay can be lifted if “the debtor does not have an equity in such property” and “such property is not necessary to an effective reorganization.”

Section 362(d)(1) permits a bankruptcy court to lift the automatic stay for cause on its own initiative when necessary to prevent abuse, while leaving the bankruptcy case pending.

In Re McDaniels · filed 1997-08-14(d)(1)

For the reasons stated here, the Court concludes that it may sua sponte relieve the automatic stay as to all creditors in the case while, at the same time, continuing the pendency of this case in order to permit the state law foreclosure rights of First Liberty Bank and any other creditor to be exhausted.

Section 362(d)(1) does not require relief from the stay or added adequate protection payments to compensate a landlord for the chance to relet at a higher rent when the debtor pays the rent reserved in the lease.

In Re P.J. Clarke's Restaurant Corp. · filed 2001-07-31(d)(1)

On the same analysis, Congress would not want a landlord to receive payments in excess of the amounts bargained for in the lease, on the ground that these additional payments would constitute payments on unsecured debt. ... Based on the foregoing, the Landlord’s motion for “use and occupancy” or “adequate protection payments” at an amount in excess of the rent reserved in the Lease is denied.

Cause exists to lift the automatic stay for payment of directors’ and officers’ insured defense costs when withholding payment threatens substantial and irreparable harm and the estate’s competing coverage interest is hypothetical.

In Re Allied Digital Technologies, Corp. · filed 2004-03-16(d)(1)

Without funding, the Individual Defendants will be prevented from conducting a meaningful defense to the Trustee’s claims and may suffer substantial and irreparable harm. The directors and officers bargained for this coverage. ... Even if they were property of the estate, the Individual Defendants have shown cause for stay relief.

Section 362(d)(1) permits relief from the automatic stay to pursue ejectment when a prepetition foreclosure sale has extinguished the debtor’s ownership rights and continued possession serves no legitimate bankruptcy purpose.

In Re Dunlop · filed 2007-10-16(d)(1)

If bankruptcy serves no legitimate purpose in retaining the debtor’s possession, then the property owner should be granted relief from the stay to exercise its non-bankruptcy law rights to recover possession from the debtor. ... The prepetition rulings of the state court, along with the terms of the debtor’s proposed chapter 13 plan as they concern Central Penn Property Services, renders inappropriate the continuation of the bankruptcy stay regarding the Devon realty. Therefore, it is appropriate to terminate the bankruptcy stay under section 362(d)(1), ... and allow the parties to exercise whatever rights they may have under Pennsylvania law.

Section 362(d)(1) does not require lifting the automatic stay to pursue a claim that lacks merit.

The Flintkote Company v. · filed 2016-07-26(d)(1)

And because the claim was not viable, the Court did not abuse its discretion in denying Frederick’s request to lift the automatic stay.

Section 362(d)(1) does not entitle a junior secured creditor to adequate protection payments solely because interest accruing on a senior claim reduces the value of its interest, absent evidence that the collateral itself is declining in value.

1604 Sunset Plaza, LLC · filed 2022-04-08(d)(1)

PB is not entitled to adequate protection payments because no evidence has been presented establishing that the 1604 Sunset Property is declining in value. The fact that PB’s interest in the 1604 Sunset Property may be decreasing as a result of the increase in EWB’s claim does not change this result.

A creditor seeking stay relief for lack of adequate protection under § 362(d)(1) must initially show that the value of its collateral is declining.

In re Guerrero · filed 2015-09-01(d)(1)

To prevail on her claim for lack of adequate protection under section 362(d)(1), Bierman must demonstrate, at a minimum, that the value of the Greendale property is declining.

Section 362(d)(1) does not justify lifting the automatic stay for lack of adequate protection when the creditor has not shown that the secured value of its interest is declining.

In re Settlers' Housing Service, Inc. · filed 2014-01-16(d)(1)

Here, it has not been shown that the secured value of the Bank’s interest is declining. Therefore the Bank is now adequately protected, and is not presently entitled to relief from the automatic stay for lack of adequate protection, and that condition appears likely to remain until the adversary proceeding is litigated.

Section 362(d)(1) does not justify lifting the stay for lack of adequate protection when the creditor has not shown a present or sufficiently imminent threat to its secured claim from superior tax liens.

In re Bovino · filed 2013-07-26(d)(1)

But until such increased likelihood occurs, the Movant has failed to meet its burden to necessitate lifting of the stay based upon “cause” and a lack of adequate protection under section 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay for lack of adequate protection when a debtor fails to make payments and maintain insurance on the property.

McCullough v. Horne (In re McCullough) · filed 2013-07-10(d)(1)

Accordingly, McCullough not only failed to make payments but also failed to obtain an insurance policy on the property. As such, there does not appear to be any reason why relief from automatic stay was improperly granted. Therefore, the bankruptcy court correctly decided to grant relief on the basis that the Hornes’ property interest was not adequately protected.

Section 362(d)(1) does not require adequate protection for a secured creditor whose collateral is not declining in value during the stay.

In re Batista-Sanechez · filed 2013-05-31(d)(1)

In this case, the subject property in which SunTrust has an interest is not declining in value during the bankruptcy. The evidence shows that the value of the Property has remained constant from 2011 through the filing of this bankruptcy case. Therefore, Debtor does not need to provide SunTrust with adequate protection, as long as it maintains the value that existed when the bankruptcy case was filed.

Under § 362(d)(1), an equity cushion used to assess adequate protection is measured against the value of the collateral rather than the creditor’s claim.

In Re jer/jameson Mezz Borrower II, LLC · filed 2011-12-22(d)(1)

Second, the proper calculation is to compare the equity cushion to the value of the collateral, not to the moving creditor’s claim.

Section 362(d)(1) permits a secured creditor to seek relief from the automatic stay when declining collateral value leaves its allowed secured claim in need of protection.

In re Landry · filed 2011-12-14(d)(1)

A secured party who believes that a debtor is “dragging his or her feet” in getting to confirmation in order to take advantage of a decline in market value is free to seek relief from the automatic stay under § 362(d)(1) if it can establish that the value of its collateral is declining and its allowed secured claim is therefore in need of protection.

Section 362(d)(2) permits relief from the automatic stay in a Chapter 7 case when the debtor has no equity in the property, because no reorganization is in prospect.

Roswell Holdings, LLC v. Houser (In re Houser) · filed 2011-12-15(d)(2)

In a Chapter 7 case, if there is no equity in the property, relief is appropriate because there is no reorganization in prospect.

Section 362(d)(1) allows relief from the automatic stay for lack of adequate protection when missed property tax payments threaten a creditor’s interest in the property.

In Re Scott · filed 2011-05-18(d)(1)

A creditor may obtain relief from the automatic stay “for cause, including lack of adequate protection.... ” 11 U.S.C. § 362(d)(1). ... Because Waters’s interest in Scott’s property is not adequately protected, his motion for relief from stay will be granted by separate order.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor’s speculative repayment proposals fail to provide adequate protection to a secured creditor.

In Re DB Capital Holdings, LLC · filed 2011-05-25(d)(1)

For these reasons, the Court finds adequate protection does not exist for purposes of § 362(d)(1). Therefore, West LB has shown cause for relief from stay against the Debtors.

Section 362(d)(1) requires a party seeking relief from the automatic stay for lack of adequate protection to show an interest in property whose value is declining because the stay continues.

In Re Stone Resources, Inc. · filed 2011-03-28(d)(1)

To meet its burden, a party seeking relief for lack of adequate protection must at the very least demonstrate that it possesses an interest in property and that the value of its interest is declining as a result of the continued operation of the automatic stay.

Section 362(d)(2) permits relief from the automatic stay in Chapter 7 when the creditor’s collateral lacks equity and no defense to stay relief is identified.

In Re Moore · filed 2011-04-25(d)(2)

Once the undisputed allegations which specifically demonstrate a lack of equity in the bank’s collateral are accepted as true, ... all pf the requirements of § 362(d)(2) have been satisfied and, in the absence of any identifiable defense, there is no reason not to grant the motion.

Section 362(d)(1) permits relief from the automatic stay to allow a creditor to set off a tax refund when the debtor intends to spend the refund and fails to show adequate protection of the creditor’s interest.

In Re Stienes · filed 2002-07-31(d)(1)

Under 11 U.S.C. § 362(d)(1), relief from the stay may be granted “for cause, including the lack of adequate protection of an interest in property of such party in interest.” ... Given the intended immediate dissipation of the funds by the debtors, I conclude that the debtors have failed to meet their burden.

Section 362(d)(1) allows relief from the automatic stay for lack of adequate protection on a motion, but a creditor cannot assert that lack defensively to withhold estate property.

In Re Garcia · filed 2002-04-01(d)(1)

One of the grounds for relief from the automatic stay is the lack of adequate protection of an interest in property. 11 U.S.C. § 362(d)(1). A request for relief from the automatic stay alleging lack of adequate protection is made by motion. ... In the present case, the Creditor is using lack of adequate protection defensively, as a reason for withholding property of the Debtor’s bankruptcy estate. This tactic is procedurally improper.

Section 362(d)(1) permits relief from the automatic stay for cause when a secured creditor’s claim exceeds the collateral’s value and the debtor offers no other adequate protection.

In Re Ledis · filed 2001-03-08(d)(1)

Today, I follow the reasoning of those courts and hold that Heins is entitled to relief as a matter of law because she has shown her security interest in the collateral is not adequately protected insomuch as her claim exceeds ... the value of the collateral and the Debtor has not offered some other form of adequate protection.

Section 362(d)(2) requires a movant seeking relief from the automatic stay to prove that the debtor lacks equity in the property.

Graybar Electric Co. v. Property Technologies, Ltd. (In Re Property Technologies, Ltd.) · filed 2001-03-15(d)(2)

Because plaintiff failed to prove debtor has no equity, plaintiff as movant is not entitled to relief from the stay under § 362(d)(2).

Section 362(d)(1) permits relief from the automatic stay for cause when a secured creditor establishes that its interest is inadequately protected by collateral in which the debtor has no equity and on which the debtor has stopped making payments.

In Re Geiger · filed 2001-03-22(d)(1)

Given these facts, we conclude that Movant met its burden of establishing that its interests are not adequately protected and that “cause” exists to grant it relief from the automatic stay.

Section 362(d)(1) permits relief from the automatic stay when a secured creditor lacks adequate protection because the debtor’s plan provides no payment of the secured debt.

In Re Chu · filed 2001-01-31(d)(1)

Furthermore, because the Plan does not provide for payment of the Debt during its term, the Creditors’ security interest is not adequately protected, and their motion for relief from the automatic stay will be granted.

A creditor that repossessed estate property before the bankruptcy petition need not return it after the petition until adequate protection is provided.

Coleman v. Grand National Bank (In Re Coleman) · filed 1999-02-01(a)

Thus, a creditor that repossesses estate property pre-petition is under no obligation to return the property post-petition until and unless adequate protection is provided.

Section 362(d)(1) and (d)(2) permit denial of creditors’ requests for relief from the automatic stay when the creditors have been provided adequate protection.

In Re Kirby · filed 1998-06-25(d)(1), (d)(2)

The Movants' Motion for Relief From Stay pursuant to 11 U.S.C. § 362(d)(1) and (d)(2) is due to be denied based upon adequate protection has been provided to them pursuant to 11 U.S.C. § 363(e).

Section 362(d)(1) allows relief from the automatic stay for cause, but insured collateral and sufficient equity cushions can adequately protect a secured creditor and support continuing the stay.

In Re Olick · filed 1998-05-29(d)(1)

In this instance, the Debtors have demonstrated that NPB is adequately protected by virtue of the facts that the properties are insured and that sufficient equity cushions exist to protect the value of NPB’s liens. Thus, we are not prepared at this time to grant NPB relief from the stay.

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

In Re Clinton Fields, Inc. · filed 1994-05-24(d)(1)

Additionally, the Court finds that Movant’s interest in the property is protected by both its equity cushion and Mr. Conn’s willingness to make adequate protection payments during the pendency of this case. Furthermore, the property does not appear to be diminishing in value, and Movant is receiving interest on its claim. Therefore, adequate protection exists within the meaning of 11 U.S.C. § 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay when a creditor lacks adequate protection and the debtor offers no other form of protection.

In Re Hinchliffe · filed 1994-02-25(d)(1)

As debtors have not offered any other form of adequate protection to Transameriea, we find that Trans-america is entitled to relief from the automatic stay under § 362(d)(1).

Section 362(d)(1) does not require relief from the automatic stay for lack of adequate protection when the debtor has equity in the home and a Chapter 13 plan provides for full payment of mortgage arrearages and current payments through payroll deductions.

Bowest Corp. v. Stafford (In Re Stafford) · filed 1991-01-25(d)(1)

Here, the debtors have equity in their home and the Chapter 13 plan calls for payment of all arrearages on the mortgage in full. The bankruptcy court has ordered that arrearage payments and current mortgage payments be accomplished through payroll deductions and the standing Chapter 13 trustee. Under these circumstances, the court cannot say that the bankruptcy judge abused his discretion in refusing to lift the automatic stay of 11 U.S.C. § 362.

Section 362(d)(1) does not warrant relief from the automatic stay when a debtor makes payments sufficient to adequately protect the creditor’s interest.

Cobb v. Mortgage Default Services (In Re Cobb) · filed 1990-12-11(d)(1)

If she did so, the Mortgagee’s interests would appear to be adequately protected, thus eliminating its cause for relief under 11 U.S.C. § 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay for cause when the creditor’s interest is inadequately protected.

Matter of Mueller · filed 1990-12-06(d)(1)

Plaintiff, however, is entitled to some relief under 11 U.S.C. § 362(d)(1), for cause due to lack of adequate protection.

Section 362(d)(1) requires adequate protection of a junior mortgagee’s interest, valued by expected net foreclosure proceeds, when senior mortgage interest accrual diminishes that interest.

In Re Robbins · filed 1990-09-11(d)(1)

Section 362(d)(1) does not speak in terms of providing adequate protection of the value of the collateral. It requires adequate protection of the creditor’s “interest in property.” ... Because we are valuing only the creditor’s interest in the property, an interest whose value depends not on enjoyment of the property but rather on its sale, such expenses are proper deductions in arriving at the value of a mortgage interest. ... His claim therefore lacks adequate protection.

Section 362(d)(1) does not entitle an oversecured creditor to adequate protection when deterioration in collateral value has never imperiled its allowed secured claim.

In Re Laymon · filed 1990-06-27(d)(1)

The court also notes that the payment of interest under Section 506(b) has antecedents entirely independent from the payment of “adequate protection” to the secured creditor pursuant to Sections 362(d)(1) or 363(e). ... It will of necessity not be entitled to “adequate protection” because its allowed secured claim has never been imperiled by the deterioration in value of its collateral.

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor fails to provide adequate protection for the proposed use of rents, allowing the secured creditor to notify the tenant and collect future rents.

Wilhite Pure Oil Truck Stop, Inc. v. McCutchen (In Re McCutchen) · filed 1990-06-08(d)(1)

Further, because of the debtor’s failure to provide adequate protection for use of the rents, the Court finds cause to grant the secured creditor relief from the automatic stay under § 362(d)(1) to permit the creditor to give its notice to the lessee pursuant to Tennessee Code Annotated § 66-26-116(b).

Section 362(d)(1) protects a secured creditor against a decline in collateral value after the automatic stay begins, but does not require adequate protection for a prepetition decline.

In Re Camellia Court Apartments, Ltd. · filed 1990-04-13(d)(1)

Under § 362(d)(1) a creditor is generally entitled to protection from any decline in the value of its allowed secured claim following the imposition of the automatic stay. The creditor is not entitled to adequate protection for a decline in value which occurred prepetition.

Section 362(d) permits relief from the automatic stay for cause, including inadequate protection, or when the debtor lacks equity in property unnecessary to an effective reorganization.

Fidelity Bond & Mortgage Co. v. McAloon (In Re McAloon) · filed 1980-01-14(d)

We will deny relief from the stay in this case because we find that the debtor has equity in the property, the property is necessary to the success of the Chapter 13 plan, and because we find that the mortgagee’s interest in the property is adequately protected.

Section 362(d)(1) permits lifting the automatic stay for cause when prolonged default, tax delinquencies, and substantial unpaid interest leave a secured creditor without adequate protection.

Diversified Mortgage Investors v. Lake Tahoe Land Co. (In Re Lake Tahoe Land Co.) · filed 1980-05-25(d)(1)

These facts together with the tax delinquencies and the staggering amount of unpaid interest justify a finding of cause for lifting the stay.

Section 362(d)(1) permits relief from the automatic stay when the debtor fails to provide adequate protection for a landlord’s interest in the property.

Grand Hudson Corp. v. GSVC Restaurant Corp. (In Re GSVC Restaurant Corp.) · filed 1980-04-18(d)(1)

Moreover, contrary to the assertions of the debtor, the court below assumed that there might be some lingering equitable interest in the premises, but nevertheless determined under the facts established that the plaintiff was entitled to relief. Considering the continual tactics employed by the debtor in frustrating and delaying the plaintiff’s attempts to evict it, in the absence of adequate protection for the plaintiff’s interest in the property, this determination was clearly correct.

An equity cushion can adequately protect a secured creditor’s interest under § 362(d)(1), allowing the automatic stay to continue.

First National Bank of McDonough v. Shockley Forest Industries, Inc. (In Re Shockley Forest Industries, Inc.) · filed 1980-06-30(d)(1)

Section 362(d)(1) of the Bankruptcy Code provides that a court shall grant relief from the automatic stay provided in Section 362(a) for cause including lack of protection of an interest in property of a party in interest. ... Plaintiff’s interest in the collateral is adequately protected by the equity cushion created by the excess of the value of the security over the amount of the debt due.

Section 362(d) requires relief from the automatic stay if the creditor lacks adequate protection, or if the debtor has no equity in property that is unnecessary to reorganization.

Imperial Bank v. El Patio, Ltd. (In Re El Patio, Ltd.) · filed 1980-09-26(d)

Section 362(d) requires the Court to grant relief from the stay if the creditor is not adequately protected or if the debtor has no equity in the property and the property is not necessary for the debtor’s reorganization. After the creditor requests the Court to lift the stay, its continuance shall be granted only upon the determination that adequate protection in some form is or will be provided.

Section 362(d)(1) requires a fact-specific assessment of whether an equity cushion adequately protects a creditor against the automatic stay.

Sanders v. Tucker (In Re Tucker) · filed 1980-07-02(d)(1)

The adequacy of the protection afforded by an equity cushion, stated either as a dollar amount or as a percentage of the estimated fair market value of the property, must ultimately be determined upon equitable considerations arising from the particular facts of each proceeding.

An equity cushion in the debtor’s property can adequately protect a secured creditor’s interest and support continuing the automatic stay.

City National Bank v. San Clemente Estates (In Re San Clemente Estates) · filed 1980-08-11(d)(1)

This equity provides adequate protection for the interest in the property held by the Bank and thus satisfies the requirements of Section 362(d).

Section 362 permits lifting the automatic stay when a declining equity cushion no longer adequately protects a secured creditor; payments covering interest and depreciation can maintain that protection.

Ingersoll-Rand Financial Corp. v. 5-Leaf Clover Corp. (In Re 5-Leaf Clover Corp.) · filed 1980-09-03(d)(1)

The debtor may postpone and continuously advance the impairment date by regular payments which at least equal the combined depreciation and interest on the debt. In this manner the equity ratio will be maintained at the appropriate level. If the debtor is unable to do so, the automatic stay will be lifted to permit the creditor to repossess the collateral and dispose of it in satisfaction of the debt.

Section 362(d)(1) requires relief from the automatic stay when an interested party lacks adequate protection, and the trustee bears the burden of proposing or providing that protection.

Korenman v. Barr (In Re Richards Pontiac, Inc.) · filed 1980-09-15(d)(1)

The mandatory language of this subsection requires the court to grant relief from stay unless the plaintiffs are adequately protected. The trustee has the burden of proposing or providing the plaintiffs with adequate protection.

Section 362(d) permits a motion for adequate protection to serve as a request for relief from the automatic stay when it seeks to modify the stay to protect collateral, even without expressly requesting that the stay be lifted.

Memphis Bank & Trust Co. v. Brooks · filed 1981-01-21(d)

Clearly, the bank’s “Motion for Adequate Protection” was identifiable with § 362 for this reason, and therefore was in fact a request for relief from the stay. Although the motion did not request a lifting of the stay itself, it did request a modification of the stay to protect collateral from destruction. Therefore, the Court holds that the bank’s motion for adequate protection was a request for relief from the stay within the meaning of § 362(d).

Section 362(d) permits relief from the automatic stay when a secured creditor lacks adequate protection, or when the debtor has no equity in the collateral and an effective reorganization is unlikely.

Kimbrough Investment Co. v. Royal D'Iberville Corp. (In Re Royal D'Iberville Corp.) · filed 1981-01-26(d)

Accordingly, this Court concludes that the automatic stay must be lifted pursuant to Bankruptcy Code Section 362, because Kimbrough’s secured claim is not adequately protected and because the debtor lacks equity in the collateral and no effective reorganization appears likely.

An equity cushion can adequately protect a secured creditor under § 362(d)(1), allowing the stay to continue without periodic cash payments while the cushion remains sufficient.

West Virginia Tractor & Equipment Co. v. Orlando Coals, Inc. (In Re Orlando Coals, Inc.) · filed 1980-10-31(d)(1)

However, the large amount, of equity, ranging from $1 million to $2.3 millions, presently provides adequate protection of the interest of this creditor. This finding does not preclude the Plaintiff seeking relief from the stay at a later time if it can demonstrate that the equity cushion no longer affords it adequate protection. Until that occurs, periodic cash payments will not be required.

Section 362(d) permits a court to deny relief from the automatic stay when adequate protection can be provided to the secured creditor.

National Bank & Trust Co. of Columbus v. Williams (In Re Williams) · filed 1980-11-25(d)

Conversely, if adequate protection can be provided then there is no “cause,” and the complaint for relief from the stay should be denied.

Section 362(d) permits relief from the automatic stay when the debtor fails to provide adequate protection for a secured creditor.

EMB Realty Corp. v. Pittman (In Re Pittman) · filed 1980-12-17(d)

The Debtor fails to provide adequate protection for the plaintiff-secured creditor and relief of the automatic stay provided by § 362(a) should be granted pursuant to § 362(d).

Section 362(d)(1) requires adequate protection of a secured creditor before Chapter 13 debtors may retain and use the creditor’s collateral.

In Re Gunder · filed 1980-12-31(d)(1)

Relief from the provisions of § 362 is therefore governed by § 362(d)(1), applicable in Chapter 13 proceedings pursuant to 11 U.S.C. § 1303, which conditions the debtors’ retention and use of secured collateral upon the provision of adequate protection to the creditor. The Court finds that the currently proposed Chapter 13 plan is deficient in failing to set out adequate protection for BancOhio, a creditor secured in property which the debtors wish to redeem, retain, and use.

Section 362(d)(1) permits relief from the automatic stay for lack of adequate protection when the creditor has no equity cushion and the debtor’s plan cannot repay mortgage arrearages within a reasonable time.

Philadelphia Saving Fund Society v. Stewart (In Re Stewart) · filed 1981-01-07(d)(1)

Thus, we must conclude that PSFS’s interest in the debtor’s residence is not adequately protected because there is no equity in the property and because the debtors’ plan cannot provide full repayment of the arrearages within a reasonable time.

Section 362(d)(1) permits modification of the automatic stay when a secured creditor lacks adequate protection because its equity cushion is rapidly eroding and it has long been deprived of payments.

Banking Saving & Loan Ass'n v. Stuart Motel, Inc. (In Re Stuart Motel, Inc.) · filed 1980-12-09(d)(1)

By reason of the fact that the equity cushion is eroding so rapidly and that the plaintiff has been deprived of the use of its funds for such an extended period of time and by further reason of the fact that the court has found in its order denying confirmation of debtor’s proposed plan that it was unlikely that the debtor could have a successful plan of reorganization since its proposed plan had been amended and modified on several occasions, thus indicating that the debtor made its best effort, the court concludes that the creditor is not receiving adequate protection under 11 U.S.C. § 362(d)(1) and therefore is entitled to a modification of the stay unless the debtor complies with the conditions set forth below and in the separate Final Judgment being entered in this case.

Section 362(d)(1) allows a court to condition continuation of the automatic stay on insurance and monthly interest and tax payments to provide adequate protection to a secured creditor.

MGIC Financial Corp v. Graydon (In Re Graydon) · filed 1981-01-16(d)(1)

However, in considering the total concept of adequate protection, the court recognizes the unfairness to a creditor of permitting the debtor to operate these facilities during prime tourist season, without any accounting for income and with no end to the hiatus in the creditor’s income stream in sight. Therefore, the continuing of the automatic stay against plaintiff’s pursuit of its foreclosure action will be conditioned upon the defendant’s maintaining insurance as required by the mortgage and his payment to MGIC of monthly interest and real estate tax accrual for 1981, commencing with the February 1, 1981 payment, subject to a reduction in the monthly payments on the debtor’s showing that revenues from the operation of the Players’ Club are insufficient to produce the required payments, and after notice and an evidentiary hearing.

Section 362(d) permits relief from the automatic stay for cause when a secured creditor lacks adequate protection of its interest in the collateral.

First National Bank of Homestead v. Tavormina (In re Crisco) · filed 1981-02-13(d)

Further, the Court concludes that due to the. Debtor’s inability to repay his debt to Plaintiff and the absence of any present prospects for such repayment, Plaintiff is without adequate protection of its interest in the subject motor vehicle. Accordingly, the Court holds that Plaintiff has established its right to relief from the automatic stay entered herein as it has shown cause therefor as prescribed in § 362(d) of the Bankruptcy Reform Act of 1978, 11 U.S.C. § 362(d).

Section 362(d)(1) permits relief from the automatic stay for lack of adequate protection when the equity cushion securing a creditor is eroding because the debtor is not paying debt service on the property’s liens.

Moody v. American Restaurants Management Corp. (In Re American Restaurants Management Corp.) · filed 1981-01-29(d)(1)

While it is not necessary to determine whether or not the debtor has any equity in the property under § 362(d)(1), it is certainly obvious that whatever cushion the plaintiff relied upon in taking his mortgage is rapidly eroding since the debtor is not paying the debt service on any of the liens. It is also apparent that this eroding cushion does not provide adequate protection to the plaintiff.

Section 362(d)(1) permits relief from the stay for lack of adequate protection when a debtor offers only hazard insurance and future mortgage payments without showing an equity cushion, actual payments, or a way to cure arrears.

Fidelity Bond & Mortgage Co. v. Caulk (In Re Caulk) · filed 1981-02-20(d)(1)

Based on this definition, we fail to see how either hazard insurance or an offer to make current payments adequately protects the secured creditor. ... Had the debtor presented evidence as to the alleged equity cushion, and continued making the required mortgage payments, rather than merely offering to do so, or presented some evidence indicating an intention to make up the arrearages, the result today may have been different. In the absence of such additional factors, we conclude that Fidelity is not adequately protected.

Section 362(d)(1) permits relief from the automatic stay when a secured creditor cannot receive adequate protection of the economic value of its bargain.

United Virginia Bank v. Virginia Foundry Co. (In Re Virginia Foundry Co.) · filed 1981-02-20(d)(1)

While the bankruptcy court took action which may have “adequately secured” appellant’s claim, it failed to afford appellant the economic equivalent of the benefit of its bargain. A secured creditor is entitled to relief from the automatic stay of § 362 if “adequate protection” of his property interests cannot be arranged.

Section 362(d) permits relief from the automatic stay for lack of adequate protection, but a debtor’s equity in property can sufficiently protect a mortgagee’s claim while plan confirmation is pending.

Di Pierro v. Cullen (In Re Taddeo) · filed 1981-02-25(d)

Under Section 362(d), the automatic stay imposed by the Code may be defeated by demonstrating lack of “adequate protection.” ... In light of the fact that a confirmation hearing has not yet been held, and since the Court is aware of no financial incapacity of the debtors, it cannot be said that the plaintiff’s interest is being prejudiced by the continuance of the stay. The equity that the debtors possess in their property appears to serve as sufficient protection for the plaintiff’s claim. ... Therefore, the Court finds that there is no present cause to vacate the stay now in force.

Section 362(d)(1) permits a sufficient equity cushion to provide adequate protection and justify keeping the automatic stay in effect.

Delaware Valley Savings & Loan Ass'n v. Curtis (In Re Curtis) · filed 1981-03-05(d)(1)

Presently before the court is the Complaint of Delaware Valley Savings and Loan Association (“Delaware Valley”) seeking relief from the automatic stay pursuant to § 362(d), 11 U.S.C. § 362(d). Because we find that debtor has equity in the property sufficient to adequately protect the interest of Delaware Valley, the automatic stay shall remain in effect.

Section 362(d)(1) permits relief from the automatic stay for cause when a mortgage creditor lacks adequate protection; federal mortgage insurance alone does not provide it.

Fidelity Bond & Mortgage Co. v. Presock (In Re Presock) · filed 1981-02-20(d)(1)

This court has recently concluded that a mortgage insured or guaranteed by the U.S. Government, or any agency thereof, does not, of itself, constitute adequate protection. ... The plaintiff, Fidelity Bond and Mortgage Company, has sustained its burden of establishing “cause” for the lifting of the stay as required under Code § 362(d)(1), 11 U.S.C. § 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay when a secured creditor lacks adequate protection of its interest in property.

Capital Savings & Loan Ass'n v. Bailey (In Re Bailey) · filed 1981-04-09(d)(1)

Having found that the Plaintiff is entitled to relief due to a lack of adequate protection of its interest in property, the Court need not make any findings that the Debtor has no equity in the property or that it is necessary to an effective reorganization, however, the Debtor has yet proposed no plan and the evidence presented here is not such that this Court could readily find a need for this property in an effective reorganization.

Under § 362(d)(1), adequate protection is assessed in light of the particular creditor’s circumstances, including its ability to protect its lien from a senior foreclosure.

Demers v. Kinseth (In Re Kinseth) · filed 1981-05-04(d)(1)

As to the first argument, the Court must take the parties as it finds them and consider their individual circumstances.

Section 362(d)(1) protects interests in specific estate property or property in the estate’s possession; a prepetition obligation to post security is an unsecured monetary claim that does not receive adequate protection.

Equitable Life Assurance Society of the United States v. Barkley-Cupit Enterprises, Inc. (In Re Barkley-Cupit Enterprise · filed 1981-07-13(d)(1)

To be entitled to adequate protection, an interest must be an interest in specific property of the estate or specific property in the possession of the estate. Entitlement to a sum of money from a debtor, e. g., as “proper security” under Rule 65(c), Federal Rules of Civil Procedure, is not an “interest in property” entitled to adequate protection under 11 U.S.C. § 362(d).

Section 362(d)(1) permits relief from the automatic stay when the debtor fails to show adequate protection for a secured creditor’s interest, including when the equity cushion is insufficient.

Lincoln Bank v. High Sky, Inc. (In Re High Sky, Inc.) · filed 1981-08-04(d)(1)

The debtor has not sustained its burden of proving that it has furnished the plaintiff with adequate protection for its interest in the property, as there is not a sufficient equity cushion in the property and no evidence was offered by the debtor that would otherwise adequately protect the Bank’s interest within the meaning of § 362(d)(1) of the Code.

Section 362(d)(1) permits relief from the automatic stay when the debtor has not adequately protected a party’s interest in property.

Calistri v. Barrows (In Re Barrows) · filed 1981-08-13(d)(1)

The Court has decided to lift the stay in this case because we find that the debtor has not furnished the plaintiffs with adequate protection for their interest in the property within the meaning of § 362(d)(1) of the Code.

Section 362(d)(1) permits an equity cushion together with offered periodic mortgage payments to adequately protect a mortgagee’s interest against continuation of the automatic stay.

Commonwealth State Employees' Retirement Fund v. Roane · filed 1981-09-11(d)(1)

Thus, the Court holds that the existing equity cushion, together with the offer of the debtor to make periodic payments on the outstanding mortgage, “adequately protects” the mortgagee’s interest in the mortgaged property.

Section 362(d) allows a stay to remain in effect when the secured creditor receives adequate protection, including cash payments and a replacement lien.

Matter of Selby Farms, Inc. · filed 1981-10-07(d)

In order for the stay to remain in effect, however, the Court must conclude that BYC is currently adequately protected. ... In order to provide adequate protection, the Court will require the Debtor to pay the sum of $275,000 to Federal Land Bank, the sum of $325,395.70 to First National, and the sum of $181,395.69 to BYC. In addition, First National and BYC shall have a replacement lien on the entire soybean crop planted by the Debtor in 1981. ... Accordingly, the Court concludes that BYC is adequately protected and that relief from the automatic stay pursuant to Section 362(d)(2) should not be granted.

Section 362(d)(1) permits relief from the automatic stay when a mortgagee faces substantial risk of loss, even if the debtor has a substantial equity cushion.

Whitinsville Savings Bank v. Grundstrom (In Re Grundstrom) · filed 1981-10-26(d)(1)

This case makes it ... clear that an “equity cushion” is not the only measure of economic risk to a mortgagee and where, as here, the economic risk to the mortgagees is substantial, the court has no choice but to grant relief from the automatic stay despite the debtors’ substantial equity in the property.

Substantial equity in a residence alone does not provide adequate protection under § 362 when the debtor proposes liquidation only at the end of a Chapter 13 plan.

Georgia Federal Savings & Loan Ass'n v. Anderson (In Re Anderson) · filed 1981-11-02(d), (e)

The existence of substantial equity in the residence, without more, i.e.: proposal for early liquidation, cannot provide the adequate protection required under § 362(d) and (e).

Section 362 permits relief from the automatic stay when a secured creditor’s interest is not adequately protected.

Gem Savings Ass'n v. Oak Manor Homes, Inc. (In re Oak Manor Homes, Inc.) · filed 1981-11-24(d)(1)

In short, the conclusion is inescapable that Gem Savings Association is not adequately protected as first mortgagee; and, the remedy sought should be granted.

Section 362(d)(1) calls for terminating the stay when a creditor’s lien is eroding and the debtor cannot provide adequate protection.

Atlas, Ltd. v. Kingman Warehouse Co. IX (In Re Kingman Warehouse Co. IX) · filed 1982-02-08(d)(1)

It only forestalls the inevitable, and impairs the lien position of the creditor further, to condition the 11 U.S.C. § 362(a) automatic stay on the performance by the debtor of certain terms and conditions when it is clear at the outset that the debtor is unable or unwilling to perform such terms and conditions and afford the creditor adequate protection. The Court is, therefore, forced to conclude that the 11 U.S.C. § 362(a) stay should be terminated in order to allow the Plaintiff to proceed against both Defendants on its respective real estate sale installment contracts with those Defendants.

Section 362(d)(1) permits the stay to remain in effect when an equity cushion adequately protects the secured creditor’s interest, taking account of a likely cure and reinstatement under a Chapter 11 plan.

Ketchikan Lodge No. 1429, Benevolent & Protective Order of Elks v. Hewitt (In Re Hewitt) · filed 1982-02-09(d)(1)

In light of the probable application of § 1124(2) and of the value of the Hew-itts’ property in comparison to the amount of the encumbrances on it, as set out in the findings of fact, this Court concludes that the interest of the Elks (when coupled with the application of § 1124(2)) is adequately protected by an equity cushion in excess of $300,000.

Section 362(d)(1) permits a court to lift the automatic stay for lack of adequate protection when the debtor fails to support its proposed protection with competent evidence; the court need not devise an alternative.

Metropolitan Life Insurance v. Monroe Park (In Re Monroe Park) · filed 1982-02-25(d)(1)

Thus, if the debtor asserts certain means of adequate protection and fails to support these means with competent evidence, the bankruptcy court may permissibly lift the stay without further exploration of any viable alternatives.

Section 362(d)(1) allows adequate protection through current monthly payments to prevent relief from the automatic stay.

General Motors Acceptance Corp. v. English (In Re English) · filed 1982-06-09(d)(1)

In this case, the debtors have offered to maintain the current monthly payments in order to protect this secured creditor’s interest. The Court finds that this offer will constitute adequate protection for GMAC under §§ 363 and 362.

Section 362(d)(1) does not require relief from the stay when FHA mortgage insurance adequately protects the mortgagee’s interest.

Federal National Mortgage Ass'n v. Henderson (In Re Henderson) · filed 1982-06-28(d)(1)

With respect to § 362(d)(1), we conclude that FNMA is likewise not entitled to relief from the stay thereunder because there is ample evidence that the interest of FNMA is adequately protected. First, the fact that FNMA’s mortgage is FHA-insured does provide FNMA with protection of its interest.

Section 362 permits relief from the automatic stay if a debtor fails to make court-ordered payments needed to provide adequate protection to a secured creditor.

Richlands National Bank v. Lambert Enterprises, Inc. (In Re Lambert Enterprises, Inc.) · filed 1982-06-23(d)(1)

Failure of Debtor to make said payments within sixty days, the stay of 11 U.S.C. § 362 shall stand relieved at the conclusion of said sixty-day period without further notice or hearing.

Section 362(d)(1) permits relief from the automatic stay when the creditor’s interest in property lacks adequate protection because accruing interest far exceeds the property’s rental income.

Royal Trust Bank, N. A. v. Brogdon Investment Co. (In re Brogdon Investment Co.) · filed 1982-06-29(d)(1)

First, it is apparent that the Bank is entitled to relief from the stay, and that the stay should be terminated to permit the Bank to sell the Shopping Center under the sale under power in the Security Deed. The debtor has no equity in the improved realty. Its interest is subordinated to the Bank’s interest in the property. Importantly, the Bank’s interest in the property is not being adequately protected, inasmuch as the interest accruing under the terms of the Note is far in excess of the rental income presently generated by the property.

A creditor cannot obtain relief from the automatic stay under § 362(d)(2) when the debtor has equity in the property.

Federal National Mortgage Ass'n v. Riggins (In Re Riggins) · filed 1982-07-09(d)(2)

Consequently, we conclude that, based on the evidence presented at the trial of this case, the debtor does have equity in the property and the mortgagee is, thus, not entitled to relief from the stay under § 362(d)(2).

Section 362(d)(1) permits relief from the automatic stay after confirmation of a Chapter 13 plan when the plan does not adequately protect the creditor’s interest in the property.

Waterfield Mortgage Co. v. Britton (In Re Britton) · filed 1982-07-15(d)(1)

Rather, the stay remained in effect, the creditor’s lien remained on the property and the creditor can properly request relief from that stay by showing that its interest in the property is not adequately protected.

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

General Motors Acceptance Corp. v. Lyford (In Re Lyford) · filed 1982-07-20(d)

Finding no equity in the property for the debtor in this Chapter 7 proceeding, the court grants relief from stay.

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

Davis v. Crescent Beach Inn, Inc. (In re Crescent Beach Inn, Inc.) · filed 1982-07-23(d)(2)

The court concludes that plaintiff has failed to prove lack of equity for the debtor in the real estate. ... The court finds that the real estate is necessary to an effective reorganization.

Section 362(d)(1) allows relief from the automatic stay when a record owner’s interest in property is not adequately protected.

Columbia Consulting Co. v. Castle Tool Specialty Co. (In Re Castle Tool Specialty Co.) · filed 1982-07-30(d)(1)

First, under § 362(d)(1) of the Code, a party with an interest in property is entitled to relief from the automatic stay if its interest in that property is not being adequately protected. ... As record owner, the plaintiff has some interest in the subject property and is entitled to adequate protection of that interest.

Equity in property above the secured claims defeats a request for relief from the automatic stay under § 362(d)(2) when equity is the issue presented.

American Bank & Trust Co. of Pa. v. Schlichter (In Re Schlichter) · filed 1982-08-23(d)(2)

The sole issue before the Court is whether the automatic stay imposed by § 362 of the Bankruptcy Code should be terminated pursuant to § 362(d)(2). The plaintiff alleges that the debtors and the trustee have no equity in the property to benefit the estate. The Court, however, finds that the value of the property is in excess of the stipulated value of the liens. An Order will be entered denying the plaintiff’s prayer for relief.

Section 362(d)(1) does not permit relief from the automatic stay for lack of adequate protection when an equity cushion and the debtor’s tendered post-petition payments adequately protect the mortgagee’s interest.

Pagano v. Cooper (In Re Cooper) · filed 1982-08-30(d)(1)

Rather, based on the existing equity cushion and the debtor’s proffered post-petition payments, we conclude that the mortgagee’s interest is adequately protected. The present record indicates that no cause exists to justify the modification of the stay and, consequently, we will deny the mortgagee’s request for relief from the provisions of section 362(a).

Section 362(d)(1) permits relief from the automatic stay for cause when a debtor’s speculative proposal does not adequately protect a mortgagee’s interest.

In Re AZJZ, Inc. · filed 1982-09-14(d)(1)

Third, the debtor's proposed plan to adequately protect the mortgagee's interest is conjectural only and cannot, in its present stage, serve to adequately protect the interest of the mortgagee. We conclude, therefore, that the mortgagee is entitled to relief from the automatic stay pursuant to section 362(d)(1).

Section 362(d)(1) permits relief from the automatic stay when a mortgagee’s interest is not adequately protected.

Fairmont Foods Co. v. A. Z. J. Z., Inc. (In re A. Z. J. Z., Inc.) · filed 1982-09-14(d)(1)

With respect to section 362(d)(1), we conclude that the mortgagee is entitled to relief thereunder because there is ample evidence to show that the mortgagee’s interest is not adequately protected.

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

Westinghouse Credit Corp. v. Urban Industries, Inc. (In re Urban Industries, Inc.) · filed 1982-09-15(d)(2)

Under § 362(d)(2) of the Code, the Court may grant relief from the stay if the debtor does not retain any equity in the property and the property is not necessary for an effective reorganization.

Under § 362(d)(1), failure to make periodic mortgage payments or arrange for them can leave a secured creditor without adequate protection and support relief from the automatic stay.

Ukrainian Savings and Loan Ass'n v. Trident Corp. · filed 1982-08-06(d)(1)

Standing alone, the lack of periodic mortgage payments and the failure of Trident to make arrangements for such payments supports a finding of inadequate protection.

Section 362(d) permits relief from the automatic stay after Chapter 13 plan confirmation if the creditor proves grounds for relief; general allegations of declining property values do not establish inadequate protection.

Bank of Louisville v. Brooks (In Re Brooks) · filed 1982-08-10(d)

Confirmation of a plan under Chapter 13 of the Bankruptcy Reform Act, 11 U.S.C., does not thereafter preclude, in the appropriate case, relief from the automatic stay provisions but in such instance in order to prevail the plaintiff must establish appropriate grounds for the relief requested. While it is inferred that lack of insurance protection covering the debtor’s real property may constitute grounds for granting the requested relief, no proof, evidence or documentation of any nature was submitted on this issue. In addition, naked allegations of declining property values in a given area are not sufficiently specific regarding the real estate in question in order to support a conclusion that the complaining plaintiff is inadequately protected and/or will be irreparably harmed by the continuation of the automatic stay provisions.

Section 362(d)(1) permits a court to condition the automatic stay on postpetition payments needed to adequately protect a party’s interest and to lift the stay if the debtor fails to pay.

Hilton Hawaiian Village Joint Venture v. Les Femmes Magnifique, Inc. (In re Les Femmes Magnifique, Inc.) · filed 1982-09-23(d)(1)

The Court will continue the stay on condition that Debtor pay to Hilton within 7 days from the date hereof all post-petition rents, the $4,000.00 a month guaranteed beverage profit and all expenses incurred by Hilton in connection with the shows. Thereafter, Debtor must make all payments as provided for in the Agreement. Otherwise, on the filing of an Affidavit to show non-compliance by Debtor, the Court without a hearing will issue an order lifting the stay.

A secured creditor is not entitled to relief from the automatic stay for lack of adequate protection when the debtor preserves the value of its collateral through segregated proceeds and replacement inventory.

Coachmen Industries, Inc. v. Charay Industries, Inc. (In Re Charay Industries, Inc.) · filed 1982-11-01(d)(1)

Accordingly, the court finds that the plaintiff is adequately protected and not in need of additional protection since there appears to be no loss in value of the collateral through depreciation.

Section 362(d)(1) permits relief from the automatic stay when the debtor fails to show that secured creditors are adequately protected.

GECC Financial Corp. v. Bandy (Bandy) · filed 1982-09-28(d)(1)

That the Debtor-Defendant has failed to show that the Plaintiffs above-named are adequately protected within the meaning of 11 U.S.C. § 362(d)(1).

Section 362 permits relief from the automatic stay when a secured creditor lacks adequate protection; an equity cushion can be insufficient when interest continues to accrue and selling the collateral will incur costs.

Guam Economic Development Authority v. Black Enterprises, Inc. (In Re Black Enterprises, Inc.) · filed 1982-10-26(d)(1)

Considering the daily accumulation of interest, the challenge to the validity and enforceability of the mortgage on the Barrigada Heights residence and the costs of selling the various properties, even if Griffin’s appraisal is accepted, the Court finds that the equity cushion of 22% is insufficient to afford adequate protection to GEDA. ... The stay afforded by 11 U.S.C. § 362 should be modified to permit GEDA to foreclose its mortgage liens and security interest in the Guerrero warehouses, Plastics factory property and Plastics equipment.

An equity cushion may adequately protect a mortgagee under § 362(d)(1) and justify denying relief from the automatic stay.

First Mortgage Co. of PA. v. McCall (In Re McCall) · filed 1982-12-03(d)(1)

With respect to section 362(d)(1), ... we conclude that the mortgagee is likewise not entitled to relief thereunder because the mortgagee’s interest in the subject property is adequately protected in that the debtor, as heretofore demonstrated, has established the existence of an equity cushion in said property.

Section 362(d)(1) permits relief from the automatic stay when a debtor’s speculative plan cannot adequately protect a mortgagee’s interest.

Presidential Commercial Fund, Inc. v. Jones (In Re Jones) · filed 1983-01-10(d)(1)

Consequently, we conclude that the debtor’s proposed plan is tenuous and speculative and, therefore, cannot adequately protect the interest of the mortgagee. ... Based on all the above, we conclude that the mortgagee is entitled to relief from the automatic stay pursuant to section 362(d)(1).