11 U.S.C. § 362

Section 362(h)(1) automatically lifts the stay for personal property securing a claim after the applicable deadlines, even if the property is no longer part of the estate.

In re Elkouby · filed 2016-02-29(h)(1)

The automatic lifting of the stay provided in sections 521(a)(6) and 521(a)(7) (dangling paragraph) and in section 362(h)(1), applies to all personal property securing a claim, irrespective of whether that property is still property of the estate at the time the applicable deadlines have expired.

Section 362(h)(1) treats reaffirmation and assumption of an unexpired lease as independent alternatives when a debtor elects to retain personal property.

Bobka v. Toyota Motor Credit Corp. · filed 2018-05-23(h)(1)

The Court agrees that the use of the disjunctive is indicative of independent actions that can take place without each other. If retention is chosen, the statute indicates that reaffirmation "or" assumption are viable options.

Section 362(h)(1) leaves the stay in effect for leased personal property during the debtor’s time to act on a timely filed statement of intention.

Valez v. Rent (In re Valez) · filed 2019-06-29(h)(1)

Therefore, the stay did not terminate thirty days post-petition, and Debtor was granted the benefits of the stay as to his personal property, including the property covered by the Agreement, until, at least, thirty days following the first date set for the meeting of creditors.

Section 362(h)(1) does not require a debtor to complete a personal property lease assumption when the lessor refuses; the debtor must timely state the intention to assume and take the required steps within the debtor’s control.

Kevin Anderson · filed 2019-09-04(h)(1)

There is no requirement in either § 521(d) or § 362(h) that the lease assumption be consummated. All that is required is that the debtor do his part.

A petition filed by an individual ineligible under § 109(h) commences an effective bankruptcy case and invokes the automatic stay.

In Re Ross · filed 2006-02-08(a)

The enactment of additional exceptions to the automatic stay thus evidences the understanding of Congress that a filing in violation of § 109(g) commences a ease and results in an automatic stay. Given the conclusion that the filing of a petition under § 109(g) commences a bankruptcy case that is not void ab initio, and given the absence of any indication that Congress intended that ineligibility under § 109(h) be treated any differently than ineligibility under § 109(g), it follows that the filing of a petition by an individual ineligible under § 109(h) commences a bankruptcy case that is effective, not a nullity that is void ab initio.

Section 362(a) does not impose an automatic stay upon a petition filed by individuals who have neither obtained the credit counseling required by § 109(h) nor qualified for an exception.

In Re Salazar · filed 2006-03-29(a)

Consequently, when read together, §§ 109(h), 302, and 362(a) establish that no stay can exist for debtors who fail to obtain the required credit counseling or qualify under an exception.

Section 362(a) creates an automatic stay when a debtor ineligible under Section 109(h)(1) files a petition, whether or not the debtor submits a certification requesting a credit-counseling waiver.

In Re Brown · filed 2006-05-06(a)

For the reasons stated above, this court holds that the filing of a petition by a debtor who is ineligible to be a debtor pursuant to Section 109(h)(1), with or without a certification requesting waiver under Section 109(h)(3), does create an automatic stay under Section 362(a).

A petition purporting to commence a bankruptcy case triggers the automatic stay despite debtor ineligibility under § 109 until the court dismisses the case for lack of subject matter jurisdiction.

In Re Hawkins · filed 2006-04-20(a), (b)(21)

The mere filing of what purports to be a petition gives rise to the automatic stay under § 362(a) despite the bar of § 109 until the court concludes that it lacks subject matter jurisdiction and dismisses the case.

Section 362(a) imposes an automatic stay upon a petition filed by a debtor ineligible under section 109(h), and the stay remains until modified or the proceeding is closed.

In Re Thompson · filed 2006-06-05(a)

This Court holds that petitions filed by ineligible § 109(h) debtors are not void ab initio, but in fact trigger the imposition of the automatic stay and the stay remains in place until it is later modified or the proceeding is closed.

Section 362(a)'s automatic stay begins when a bankruptcy petition is filed even if the petitioner is ineligible under section 109(h).

In Re Gossett · filed 2007-04-24(a)

Until the Court determines that a petitioner is ineligible as a debtor, a case is commenced by the filing of the petition, an estate is created under 11 U.S.C. § 541, and the automatic stay of § 362(a) commences. Thus, the petition cannot be void ab initio.

Section 362(b)(21)(A) excepts a real property foreclosure from the automatic stay if the debtor is ineligible to file the bankruptcy case under § 109(g).

Dos Anjos v. Bank of America, N.A. (In re Dos Anjos) · filed 2012-11-06(b)(21)(A)

There is no question that upon filing the present petition, the Debtor effectively commenced a bankruptcy case and invoked the protections of the automatic stay. Nevertheless, if the Debtor was ineligible to file this case as the Defendants say, then the foreclosure would have been excepted from the automatic stay by 11 U.S.C. § 362(b)(21)(A).

Section 362 generally does not stay actions against property after it vests in a Chapter 13 debtor, but its protections for prepetition judgments and liens still apply.

Joseph Samuel Larzelere, Jr. · filed 2021-08-24(a)(2), (a)(5)

Post-vesting property would no longer be protected by the automatic stay (except as to prepetition judgments or liens, 11 U.S.C. § 362(a)(2), (5)), but this is a decision for the debtor to make.

Termination of the stay under Section 362(c)(3) permits a secured creditor to pursue nonbankruptcy remedies, but subsequent Chapter 13 plan confirmation can bind the creditor to the plan's terms.

Kurtzahn v. Sheriff of Benton County (In Re Kurtzahn) · filed 2006-06-01(c)(3)

A victory under § 362(c)(3)(B) only enables the secured party to commence non-bankruptcy remedies, once the temporary stay of § 362(c)(3)(A) is over. Unless those remedies are very quickly obtained and the collateral almost immediately liquidated, the binding effect of confirmation can nullify any first victory under § 362(c)(3)(B).

Expiration or termination of the automatic stay under Section 362(c)(3) survives Chapter 13 plan confirmation, permitting a creditor to continue exercising its contractual and state-law remedies despite confirmation.

Cline v. Deutsche Bank National Trust Co. Ex Rel. Ameriquest Mortgage Securities, Inc. (In Re Cline) · filed 2008-02-11(c)(3)

Accordingly, this Court holds Section 1327(a) does not implicitly or otherwise overrule a pre-confirmation order allowing the stay to expire under Section 362(c)(3). The expiration or termination of the stay pursuant to Section 362(c)(3) transcends confirmation, and notwithstanding Section 1327(a) a creditor may continue to rely on such expiration or termination after confirmation when exercising its contractual and state court remedies.

Confirmation of a chapter 13 plan does not reinstate an automatic stay that terminated under § 362(c)(3)(A).

In Re Hileman · filed 2011-06-13(c)(3)(A)

The automatic stay does not spring back into effect just because a plan was confirmed, but the plan does provide for the payment of the mortgage arrearages.

Section 362(b)(22) limits the automatic stay for covered residential evictions at the outset of a bankruptcy case but does not prevent a later confirmed Chapter 13 plan from binding the landlord.

Brandy Lynn Marciniak · filed 2026-01-14(b)(22)

But § 362(b)(22) answers only one question: whether the automatic stay applies at the outset of the case. It does not purport to govern confirmation.

Under the pre-2005 version of Section 362(a)(8), the automatic stay does not cover a Tax Court proceeding concerning an LLC's employment tax liability merely because its members are debtors in bankruptcy.

People Place Auto Hand Carwash, LLC v. Commissioner · filed 2006-06-14(a)(8)

For the reasons discussed below, we conclude that the automatic stay protection of 11 U.S.C. section 362(a)(8) does not extend to an LLC merely because the LLC’s members are debtors in bankruptcy.

Section 362(a)(8) makes a Tax Court petition filed during the automatic stay void and requires dismissal for lack of jurisdiction.

Cassel v. Comm'r · filed 2006-06-26(a)(8)

Because the automatic stay was in effect when the petition was filed, the petition is invalid and must be dismissed for lack of jurisdiction.

Under the pre-2005 version of section 362(a)(8), the automatic stay does not bar adjudication of a nondebtor spouse’s request for spousal relief or the debtor’s participation as an intervenor when the proceeding cannot affect the debtor’s tax liability.

Lisa Susan Kovitch, and Richard P. Kovitch, Intervenor v. Commissioner · filed 2007-04-04(a)(8)

Accordingly, we hold ... that the automatic stay imposed by 11 U.S.C. section 362(a)(8) does not preclude this Court from proceeding in this case to determine whether petitioner is entitled to relief, nor does it prohibit Mr. Kovitch from participating as an intervenor in this case.

Section 362(a)(8) stays a Tax Court proceeding concerning an individual debtor’s tax liability also as to a nondebtor spouse who intervenes in that proceeding.

Stanwyck v. Comm'r · filed 2009-03-31(a)(8)

The automatic stay of 11 U.S.C. section 362(a)(8) must stay this proceeding also as to intervenor.

Section 362(a)(8) automatically stays the pending Tax Court proceeding when the petitioner enters bankruptcy.

Lamb v. Comm'r · filed 2009-04-24(a)(8)

It is further ORDERED: That pursuant to 11 U.S.C. section 362(a)(8) , all proceedings. herein are automatically-stayed.

Under the pre-October 2005 version of § 362(a)(8), a bankruptcy filing stayed a Tax Court proceeding concerning the debtor, and a decision entered during that stay was void.

Shutts v. Comm'r · filed 2010-07-26(a)(8)

Thus, the entering of the decision violated the automatic stay, and that decision is, therefore, void.

Section 362(a)(8) stays a debtor’s Tax Court case during bankruptcy, and a Tax Court decision entered while the stay is in effect is void.

Marcinek v. Comm of IRS · filed 2011-04-06(a)(8)

We agree with the Commissioner that Marcinek's initiation of bankruptcy proceedings had the effect of staying his Tax Court case. Because the Tax Court granted summary judgment for the Commissioner while the bankruptcy proceedings were pending, the Tax Court's decision was void ab initio, and we lack jurisdiction to entertain Marcinek's appeal.

Section 362(a)(8) permits dismissal of a debtor’s Tax Court collection case on the debtor’s motion during the automatic stay when dismissal does not require deciding the underlying issues.

Settles v. Commissioner · filed 2012-05-08(a)(8)

Accordingly, we hold that 11 U.S.C. sec. 362(a)(8) does not prevent the dismissal of the instant cases on motions of peti- tioner.

Section 362(a)(1) does not stay an appeal from a Tax Court proceeding begun by the debtor’s petition for redetermination of tax deficiencies.

Schoppe v. Commissioner of Internal Revenue · filed 2013-03-28(a)(1)

We agree with the four circuits that have applied a bright-line rule that a petition filed in Tax Court is an independent judicial proceeding initiated by the debtor, not the continuation of an administrative proceeding against the debtor.

Section 362(a)(8) stays a pending Tax Court case when the taxpayer files a bankruptcy petition.

Ashmore v. Comm'r · filed 2016-03-02(a)(8)

Upon the filing of a petition in bankruptcy court by a petitioner in the Tax Court, the Tax Court case must be stayed. 11 U.S.C. sec. 362(a)(8) (2012).

Section 362(a)(8) makes a Tax Court decision entered during an individual debtor’s bankruptcy stay legally invalid.

Santana v. Comm'r · filed 2017-01-12(a)(8)

The entry of the decision occurred while petitioners were in bankruptcy; thus the decision had no legal validity.

Section 362(a)(8) automatically stays pending Tax Court proceedings when a bankruptcy petition is filed; dismissal of the bankruptcy case lifts that stay.

Lior Blas · filed 2023-11-06(a)(8)

As a result, all proceedings again were automatically stayed pursuant to 11 U.S.C. § 362(a)(8). Petitioner’s newest bankruptcy case was dismissed on March 2, 2023, once again lifting the stay of proceedings in this Court.

Section 362(a)(8) does not stay a Tax Court TEFRA partnership proceeding that concerns the partners’ tax liabilities rather than a tax liability of the debtor partnership.

GWA, LLC, George A. Weiss, Tax Matters Partner · filed 2025-04-16(a)(8)

A bankruptcy petition operates as a stay of “the commencement or continuation of a proceeding before the United States Tax Court concerning a tax liability of a debtor that is a corporation.” 11 U.S.C. § 362(a)(8). That provision does not apply here be- cause this case does not concern “a tax liability” of GWA.

Section 362(a)(8) prevents commencement of a Tax Court action while the debtor’s bankruptcy proceeding is pending.

Anthony Sicari and Esther Sicari v. Commissioner of Internal Revenue · filed 1998-02-27(a)(8)

However, when the notice of deficiency was mailed to the Sicaris in October 1992, Anthony Sicari's bankruptcy proceeding was still pending, and the automatic stay imposed by the Bankruptcy Code prevented the Sicaris from commencing any action in the Tax Court.

Section 362(a)(8) bars a debtor from filing a Tax Court petition while the bankruptcy stay remains in effect.

Schlosser v. Commissioner · filed 1990-06-11(a)(8)

While the stay continues, then, the debtor-taxpayer is prohibited from filing a petition in this Court. ... Therefore, respondent’s motion to dismiss for lack of jurisdiction as to petitioner Gabriel Schlosser will be granted.

Section 362(a)(8) stays a pending Tax Court proceeding when the taxpayer files for bankruptcy.

Cantrell v. Comm'r · filed 2012-03-27(a)(8)

Pursuant to 11 U.S.C. sec. 362(a)(8) (2006), on September 20, 2011, we vacated the opinion, vacated the decision, and stayed the proceedings in this Court.

Section 362(a)(3) does not stay a transfer of corporate assets merely because the debtor’s estate owns the corporation’s stock, where the transfer does not use those shares.

Furlong v. Donarumo (In Re Furlong) · filed 2011-04-01(a)(3)

Because Donarumo’s argument depends on the legally untenable premise that the Furlongs utilized their shares in Drew’s Plumbing to effectuate the transfer of the claims, the Bankruptcy Court did not err in concluding the transfer did not violate the automatic stay.

Section 362(a)(3) does not stay a receivership action against a limited liability company merely because the debtor is a member with no interest in its specific assets.

In Re HSM Kennewick, L.P. · filed 2006-07-11(a)(3)

HSM does not possess an interest to specific assets or property of Orchard, as it is only a member of the LLC; thus the automatic stay does not apply to protect it.

Section 362(a)(3) does not stay a foreclosure sale of property owned by an LLC merely because its sole member filed for personal bankruptcy; the member’s interest in the LLC does not give the member an interest in its property.

Williams v. PRK Funding Servs., Inc. · filed 2019-01-08(a)(3)

Accordingly, Plaintiff's claims fail to the extent they are premised on a violation of the bankruptcy stay. Plaintiff himself did not have any property interest in the property owned by the LLC. The LLC was the only owner.

Section 362(j) limits relief to confirmation that the automatic stay has terminated and does not authorize ex parte determinations of a subsequent Chapter 13 plan’s binding effect or awards of attorneys’ fees.

In Re Murphy · filed 2006-07-21(j)

As noted above, the Court’s function under Section 362(j) is limited to “confirming” an objective fact, that the automatic stay has terminated pursuant to a provision of Section 362(c). ... Due to the extremely limited nature of the relief permitted in § 362(j), the absence of notice afforded to the affected party, and the restricted function of the Court contemplated by the statute, the Court cannot hold that an order entered pursuant to 11 U.S.C. § 362(j) precludes the binding effect of a subsequent confirmation of a Chapter 13 plan without notice and an opportunity for objection. ... Since § 362(j) makes no mention of attorneys’ fees, the Court will not consider whether the Creditor can recover any such fee as part of the Application under Section 362(j).

Section 362(j) permits a party in interest to obtain an order confirming termination of the automatic stay when property leaves the estate following termination under § 362(h).

In Re Espey · filed 2006-07-24(j)

According to § 362(c)(1), the stay only continues as long as the property is property of the estate. Once the property is no longer property of the estate, as is the case when the stay terminates pursuant to § 362(h), a party in interest may move the Court for an order confirming that the stay is terminated under § 362(j).

Section 362(j) authorizes orders confirming termination of the automatic stay only when termination occurs under subsection (c), not subsection (h).

In Re Dienberg · filed 2006-08-30(j)

Based upon the foregoing the court holds that the comfort orders authorized by § 362(j) are limited to situations where the automatic stay has terminated by reason of the operation of provisions of § 362(c) and are not authorized where the stay is alleged to have terminated by operation of § 362(h).

Section 362(c)(4)(A)(ii)’s requirement to enter an order promptly confirming that no stay is in effect imposes no thirty-day or other fixed deadline.

In Re Murray · filed 2006-09-13(c)(4)(A)(ii)

It seems appropriate to conclude that, in the absence of language in the text of § 362(c)(4)(A)(ii) establishing a 30 day period, or some other specific period, when such a 30 day time period, or other specific time periods, are prevalent throughout the other provisions of § 362, the use of the word “promptly” does not require that the order be entered within 30 days of the request and does not otherwise require the entry of the order in any specific time period.

Section 362(j) authorizes orders confirming termination of the automatic stay under subsection (c), but not termination under subsection (h).

In Re Conley · filed 2006-11-22(j)

By its own terms, § 362(c) specifically exempts 11 U.S.C. § 362(h). Accordingly, a comfort order pursuant to 11 U.S.C. § 362© is not available when the stay terminates pursuant to 11 U.S.C. § 362(h).

Section 362(j) authorizes orders confirming termination of the automatic stay under subsection (c), but not termination under subsection (h).

In Re Grossi · filed 2007-02-22(j)

Entry of a comfort order under 11 U.S.C. § 362® is not appropriate when the stay allegedly has been terminated under 11 U.S.C. § 362(h).

Section 362(j) requires a comfort order confirming stay termination under subsection (c), including upon discharge, but does not require one for termination under subsection (h).

In Re Hill · filed 2007-03-06(j)

Moreover, Congress could have included the applicability of comfort orders pursuant to Section 362(j) to situations where the automatic stay has lifted pursuant to Section 362(h). They did not. ... Therefore, once the discharge was entered, a comfort order was required pursuant to Section 362(j).

Section 362(d) permits modification or lifting of an automatic stay after an earlier denial of relief when changed circumstances warrant it.

American Warrior v. Foundation Energy · filed 2024-08-01(d)

Just as new facts or circumstances may warrant the modification of an injunction on behalf of a party that previously failed to obtain relief or modification, new facts or circumstances may also warrant an order modifying or lifting a bankruptcy automatic stay for a party previously denied relief. Res judicata does not tie a bankruptcy court’s hands to prevent the protection, disposition, or sale of estate property by lifting or modifying the automatic stay as changed conditions warrant.

Section 362(a)(3) may prohibit acts or statements directed toward taking estate property by eminent domain before a condemnation action is filed when their consequences harm reorganization or the estate's value.

In Re El Comandante Management Co., LLC · filed 2006-08-10(a)(3)

Acts or statements directed to the government’s taking of debtors’ property by an eminent domain action, may, under certain circumstances, constitute a violation of the automatic stay, as the consequences may be detrimental to debtors’ reorganization and to the value of the estates.

Section 362(h)(1)(B) preserves the automatic stay and the property's estate status when a debtor timely states and acts on an intention to reaffirm on the original contract terms but the creditor insists on additional terms.

In Re Hinson · filed 2006-09-11(h)(1)(B)

As the debtor here timely agreed to reaffirm the debt on the original terms of the contract, the stay remains in place and the vehicle remains property of the estate, pursuant to § 362(h)(1)(B).

Section 362(h)(1)(B) keeps the automatic stay in place when a debtor states an intent to reaffirm on the original contract terms and the creditor refuses.

Miles v. Capital One Auto Finance & National Bankruptcy Services.com, LLC (In re Miles) · filed 2015-01-15(h)(1)(B)

The stay is not lifted however, where the debtor’s stated intent is to reaffirm the debt under the original contract terms, but the lender refuses to do so. 11 U.S.C. § 362(h)(1)(B). Debtor’s uncontroverted testimony is that the secured creditor refused to reaffirm under the original contract terms. Only then did Debtor seek to redeem the property. So, the stay remains in place.

Section 362(b)(9)(D) uses revesting to mean an absolute and unconditional transfer of property from the bankruptcy estate to the debtor.

In Re Van Stelle · filed 2006-10-04(b)(9)(D)

Nothing about either the word “transfer” or “revest” as used in this section even remotely suggests that the change in ownership contemplated involves something less than an absolute and unconditional conveyance of the subject property from the bankruptcy estate to the debtor.

Section 362(a) does not bar postpetition payment and recording of a tax-sale deed when a final prepetition foreclosure judgment extinguished the debtor’s redemption right and left only bare legal title subject to divestment.

Foskey v. Plus Properties, LLC · filed 2010-09-29(a)

Under such circumstances, actions taken postpetition to complete payment and record the deed pursuant to the prepetition tax sale are wholly consistent with what limited interest, if any, the debtor has in the property at the time of bankruptcy and therefore are not actions taken against the property of the estate in violation of the automatic stay.

After learning of a bankruptcy, a creditor must promptly take meaningful steps to lift a restraint used to collect a prepetition debt; leaving the restraint in place violates the automatic stay.

In re American Medical Utilization Management Corp. · filed 2013-07-02(a)

However, even if the conversation took place on October 23 as Mr. Okenwa contends, his failure to remove the restraint constituted a violation of the automatic stay.

A creditor who obtains a default judgment in violation of the automatic stay must, upon learning of the bankruptcy filing, vacate the judgment or immediately move to annul the stay.

In the Matter of Allied Holdings, Inc. · filed 2006-10-11(a)(1)

While the Court is sympathetic to the respondent’s position, the Court agrees with the Debtors that Newlin and his attorneys had an obligation, once informed of the bankruptcy filing, to vacate the void default judgment or, at a minimum, to immediately file a motion to annul the automatic stay.

The automatic stay requires a bank holding a debtor’s exempt funds under a prepetition restraint to release them rather than await action by the debtor or judgment creditor.

Bank of America, N.A. v. Adomah (In Re Adomah) · filed 2007-05-08

The Bank was under a duty to comply with the automatic stay and to release the exempt funds.

A creditor’s failure to release a judgment lien after notice of bankruptcy may violate the automatic stay if the inaction constitutes an intentional attempt to collect a prepetition debt.

Robb v. National Tree Co. (In Re Robb) · filed 2008-12-22(a)(2), (k)

It is possible that National Tree’s inaction may have been an attempt to collect a debt in violation of the automatic stay and discharge injunction; consequently, National Tree’s motion to dismiss will be denied and the court will allow the Debtors to conduct discovery on their claims. ... In short, the Debtors have failed to demonstrate on summary judgment that National Tree’s inaction was actually an affirmative attempt to collect a debt.

Section 362 requires an entity controlling a foreclosure sale held in violation of the automatic stay to promptly cure the violation or at least attempt to tell the debtor that collection activity has stopped.

Brown v. Wilshire Credit Corp. · filed 2009-07-14(a)

If a trustee’s sale is held in violation of the automatic stay, see 11 U.S.C. 362(a), the entity controlling the trustee’s sale has an affirmative duty to “move[ ] expeditiously to cure the automatic stay violation,” or, at the least, “attempt to contact” the debtor to inform him “that it halted and discontinued its collection activity.”

Section 362(a) requires a creditor who learns that a postpetition order of possession violated the automatic stay to undo the order and seek stay relief before proceeding with eviction.

In re Swindle · filed 2018-02-07(a)

Specifically, Ms. Lucas had a duty to undo the order of possession entered on June 23, 2017 and file a motion for relief from the automatic stay if her client sought to proceed with the eviction.

Section 362 exempts parking and traffic enforcement primarily serving public safety under the police and regulatory powers exception, and postpetition actions maintaining or continuing a state-law vehicle lien for unpaid parking penalties under the lien-perfection exception.

In Re Thomas · filed 2006-11-13(b)(4), (b)(3)

Appellees’ actions fall within the “police and regulatory powers” exception of section 362(b)(4), because parking and traffic laws are “laws affecting health, welfare, morals, and safety.” ... The Court is persuaded that Appel-lee’s activities were not primarily for pecuniary purposes. ... The DMV’s post-petition refusal to register Thomas’ vehicle, the City’s issuance of tickets for failure to have a valid registration, and the FTB’s demand for payment were thus efforts to maintain and continue the lien on Thomas’ vehicle. ... As such, these actions were exempt from the automatic stay pursuant to section 11 U.S.C. § 362(b)(3).

Section 362(b)(4) excepts a government agency’s suspension of electronic filing privileges from the automatic stay when the suspension serves a regulatory purpose rather than a primarily pecuniary one.

In Re Minnich · filed 2011-06-02(b)(4)

Suspension of Debtor’s e-filing did not have a purpose that was primarily pecuniary and it is therefore excepted from prohibition by the automatic stay.

Section 362(k) does not allow a debtor to recover attorney fees as actual damages when pro bono counsel has agreed the debtor will never be liable for them.

Dean v. Carr (In re Dean) · filed 2013-04-16(k)

While bankruptcy courts are not in complete agreement on this issue, the better-reasoned decisions deny counsel fees under § 362(k) if the debtor is represented on a pro bono basis and will never be personally liable for the fees.

Section 362(k)(1) treats attorney’s fees incurred to stop a willful stay violation as actual damages even if the debtor has no other injury.

Duby v. United States (In Re Duby) · filed 2011-06-28(k)(1)

By requiring a debtor to incur an injury other than attorney’s fees before such fees are recoverable, the USDA effectively strikes the word “including” from the statute. ... Therefore, to the extent that the Debtor incurred legal fees of $1,365.00 to stop the USDA’s willful violation of the automatic stay, she suffered actual damages and was “injured” within the meaning of the statute.

Under former Section 362(h), attorney fees recoverable as actual damages for a willful stay violation are limited to the amount owed under a court-approved contingency fee agreement when no right to greater compensation is shown.

Paloian v. Grupo Serla S.A. De C v. (In Re GGSI Liquidation Inc.) · filed 2006-11-27(h)

Only “actual” expenses may be recovered, including actual attorney fees. In the instant case, the Trustee’s actual attorneys’ fees will be the amount to be paid under the pre-approved contingency fee agreement. They have not demonstrated any right to recover more, and on this record the contingent fee is all that the Trustee is obliged to pay.

Section 362(k)(1) permits recovery of reasonable attorney fees for a willful stay violation, but the debtor must mitigate damages and bear fees incurred after a reasonable settlement offer.

Harris v. Memorial Hospital (In Re Harris) · filed 2007-08-28(k)(1)

Foremost, the attorney fees must be reasonable. ... A debtor is also under a duty to mitigate their damages. For attorney fees, this means that after reasonable offers of settlement are made, any attorney fees incurred thereafter must be borne by the debtor.

After dismissal of a bankruptcy case and expiration of the automatic stay, Section 362 does not bar a state court from awarding reasonable and necessary judgment-enforcement fees and costs incurred during the bankruptcy proceeding.

Chinese Yellow Pages Co. v. Chinese Overseas Marketing Service Corp. · filed 2008-12-30(a)

Also, the debtor argues that the fees and costs were incurred during the pendency of the automatic stay. Further, the debtor asserts the trial court had no authority to impose any fees or costs because they were incurred in the chapter 11 proceeding. These contentions have no merit as federal bankruptcy law does not affect the power of a trial court to impose reasonable and necessary attorney fees and costs pursuant to a state statute such as section 685.040 after the automatic stay has expired as occurred here.

Section 362(k)(1) entitles a debtor injured by a willful stay violation to reasonable attorney’s fees incurred in defending a non-frivolous appeal of the damages award.

Parker v. Pioneer Credit Co. (In Re Parker) · filed 2009-09-29(k)(1)

Thus, as part of her entitlement to damages flowing from the violation of a stay, a debtor is entitled to collect attorneys’ fees incurred in resisting a non-frivolous appeal.

Section 362(k)(1) permits recovery of attorney fees incurred to enforce the automatic stay and remedy a violation, but not fees incurred to prosecute a damages action for the violation.

Sternberg v. Johnston · filed 2009-10-01(k)(1)

We also hold, however, that Johnston can recover as actual damages only those attorney fees related to enforcing the automatic stay and remedying the stay violation, not the fees incurred in prosecuting the bankruptcy adversary proceeding in which he pursued his claim for those damages.

Section 362(k)(1) permits recovery of attorney fees incurred to enforce the automatic stay and remedy a violation, but not fees incurred to prosecute a damages claim for that violation.

Sternberg v. Johnston · filed 2009-10-22(k)(1)

We also hold, however, that Johnston can recover as actual damages only those attorney fees related to enforcing the automatic stay and remedying the stay violation, not the fees incurred in prosecuting the bankruptcy adversary proceeding in which he pursued his claim for those damages.

Section 362(k) permits recovery of attorneys’ fees and costs only when they are reasonable and necessary.

In re Prusan · filed 2010-03-02(k)

While attorneys’ fees and costs are recoverable under § 362(k), the fees and costs must be reasonable and necessary. ... Under these circumstances, and because punitive damages are clearly unwarranted, this Court concludes that the fees incurred in bringing this motion were neither reasonable nor necessary. Therefore, the fees and costs of bringing this motion are not recoverable by the Debtor.

Section 362(k)(1) permits recovery of attorney fees incurred to enforce the automatic stay and remedy its violation, but excludes fees incurred to prosecute a later action for damages.

Sternberg v. Johnston · filed 2010-02-08(k)(1)

We also hold, however, that Johnston can recover as actual damages only those attorney fees related to enforcing the automatic stay and remedying the stay violation, not the fees incurred in prosecuting the bankruptcy adversary proceeding in which he pursued his claim for those damages.

Section 362(k)(1) permits recovery of attorneys’ fees as actual damages only when the debtor is legally responsible for those fees.

In Re Thompson · filed 2010-03-19(k)(1)

Under § 362(k)(l), therefore, Thompson may only recover attorneys’ fees for which he is actually responsible.

Section 362(k)(1) permits recovery of attorney’s fees incurred to enforce the automatic stay or remedy its violation as actual damages, measured by amounts expended or charged without a separate reasonableness showing.

America's Servicing Co. v. Schwartz-Tallard · filed 2010-09-14(k)(1)

Appellee must prove how much she expended or was charged in attorney’s fees as a measure of her actual damages, but the statute does not require that she prove her damages were “reasonable.”

Section 362(k) permits recovery of attorney’s fees incurred prosecuting a stay violation damages action when litigation is necessary to afford the debtor a complete remedy.

Grine v. Chambers (In Re Grine) · filed 2010-09-30(k)

This court instead holds that attorney’s fees for prosecuting a damages action under § 362(k) may be compensable as actual damages under the statute under certain circumstances. ... If litigation is unnecessary to afford a complete remedy to a debtor, then the fees for commencing and prosecuting an action will fail this standard. On the other hand, if litigation is necessary to afford a complete remedy to a debtor under the particular circumstances of the case, there is nothing in the plain language of § 362(k) that precludes a judgment for the attorneys’ fees and costs incurred in prosecuting it.

Section 362(a)(1) stays a new or continuing action against an individual debtor arising from prepetition litigation, even when the claimant seeks only postpetition attorneys’ fees.

Avaya, Inc. v. Matthews (In Re Matthews) · filed 2011-08-23(a)(1)

This Court makes no determination as to any potential claim Avaya may have had against Debtor for vicarious liability or otherwise; however, the automatic stay generated from the filing of his Chapter 7 case protects Debtor, individually, from any continuing or new action arising out of the Patent Case. § 362(a)(1).

Section 362(k)(1) allows an individual debtor to recover attorneys’ fees incurred prosecuting damages for a stay violation even after the violation is corrected, when the creditor has not paid the existing damages.

Achterberg v. Creditors Trade Ass'n (In re Achterberg) · filed 2017-02-03(k)(1)

The costs and attorneys’ fees include those incurred in the individual debtor in having to prosecute the action to recover the damages caused by the violation of the stay even after the violation has been abated, but the violating party fails to pay the then existing damages (as with the violation now before the court).

Section 362(k)(1) permits a successful debtor to recover reasonable appellate attorneys’ fees and costs incurred in challenging an inadequate award for a willful automatic-stay violation.

Charles Easley, Sr. v. Collection Service of Nevada · filed 2018-12-20(k)(1)

When an appeal is necessary to secure such damages and attorneys’ fees and costs, appellate attorneys’ fees and costs should also be granted to a successful debtor, regardless of which party brings the appeal.

Section 362(k) does not require an award of attorneys’ fees incurred to litigate the amount of fees after liability has been decided.

In re: Jerry Richardson and Zoe Richardson · filed 2019-10-04(k)

Although the Richardsons argued in the bankruptcy court that Schwartz-Tallard mandates that the court award post-trial fees, the Ninth Circuit in that case made no such pronouncement, and we have found no authority supporting the proposition that fees incurred in determining fees (essentially, fees on fees) after liability has been adjudicated under § 362(k) are required to be awarded.

Section 362(k)(1) fee awards for successfully prosecuting a stay violation claim are calculated using the lodestar method.

Carmichael v. Balke · filed 2021-08-18(k)(1)

Nevertheless, it is appropriate to employ the lodestar method—which was used to calculate the prior fee award—to determine a reasonable fee award for successfully prosecuting a § 362(k) claim.

Section 362(k)(1) requires proof of injury from a willful stay violation before an individual can recover actual damages, including attorneys’ fees and costs.

Lyndel Toppin - Adversary Proceeding · filed 2021-11-08(k)(1)

Section 362(k)(1) conditions the recovery of actual damages, including attorneys’ fees and costs, on an individual being injured by a willful stay violation.

Section 362(k)(1) does not allow pro se litigants to recover attorneys’ fees for pursuing a stay-violation claim.

Moore v. Flagstar Bank FSB · filed 2021-12-08(k)(1)

While § 362(k)(1) generally permits recovery of costs and attorneys’ fees by a debtor for pursuing an action to cease violation of a stay, Am.’s Servicing Co. v. Schwartz-Tallard, 803 F.3d 1095, 1100-01 (9th Cir. 2015), pro se litigants cannot recover attorneys’ fees under that statute, Cater v. Barber, 2016 Bankr. LEXIS 1838 (B.A.P. 9th Cir. April 22, 2016).

Section 362(a)(6) stays a motion for attorneys’ fees and costs filed before the bankruptcy petition when it asserts a claim against the debtor.

BNSF Railway Company v. The Center for Asbestos Related Disease, Inc. · filed 2023-10-23(a)(6)

BNSF’s motion for attorneys’ fees and costs constitutes a claim against CARD and BNSF’s motion was filed before the bankruptcy petition; therefore, the motion for fees and costs is subject to 11 U.S.C. § 362(a)’s automatic stay.

Section 362(k)(1) allows attorney’s fees incurred to protect a debtor’s property from a willful stay violation to count as actual damages, even without other damages.

Richard Garden, Jr. v. Central Nebraska Housing Corp. · filed 2013-06-27(k)(1)

Specifically, CNH argues that our decision in Lovett establishes that attorney’s fees can never, by themselves, constitute independent “actual damage” under § 362(k). We do not read Lovett so broadly.

The court used the lodestar method to calculate fees on a section 362(k) stay violation claim.

Pope v. US Bank, National Association, as Legal Title Trus · filed 2023-02-16(k)

The breach of contract claim (Count I) arises under state law while the automatic stay violation claim (Count II) is premised on federal law. ... Accordingly, this court will utilize the lodestar method in determining the fee award under both Counts I and II, while ensuring that the factors found in the Code of Professional Responsibility inform its application of that test.

Section 362(b)(22)'s eviction exception does not apply to a public housing debtor protected by § 525(a) who discharges prepetition rent arrears and continues paying postpetition rent.

In Re Kelly · filed 2006-12-01(b)(22)

Nevertheless, the Court concludes that § 525(a) eliminates the need for a public housing debtor to cure a prepetition default as a condition to rendering the stay exception in § 362(b)(22) inapplicable. ... Section 362(b)(22) shall not apply in this case provided that the Debtor continues to pay her postpetition monthly rent either into the Court’s registry or, by agreement with MDHA, directly to MDHA.

Conversion of a bankruptcy case does not reimpose the automatic stay under Section 362(a), because conversion does not involve the filing of a petition.

In Re Ybarra · filed 2007-01-26(a)

The argument is flawed, however, since an automatic stay arises only upon the filing of a petition, ... an event that does not occur upon conversion.

Conversion of a bankruptcy case from chapter 11 to chapter 7 does not trigger or reinstate the automatic stay.

Fuchs & Associates v. Lesso CA2/2 · filed 2015-12-09(a)

Conversion of Lesso’s bankruptcy from a chapter 11 proceeding to a chapter 7 proceeding did not trigger or reinstate the automatic stay.

Under pre-BAPCPA Section 362(b)(2)(B), state courts share jurisdiction with bankruptcy courts to determine whether continued enforcement of a divorce support obligation is excepted from the automatic stay.

Krempa v. Westerbeek (In Re Krempa) · filed 2007-01-29(b)(2)(B)

Therefore, I conclude that in the instant case the Oakland County Circuit Court had concurrent jurisdiction with this court to determine whether Ms. Westerbeek’s continued enforcement of the divorce judgment with respect to the Section 71 payments was excepted from the automatic stay because of Section 362(b)(2).

Section 362’s automatic stay prevents a state court from acquiring jurisdiction over a lawsuit filed while the stay applies to every defendant.

Brashear v. Victoria Gardens of McKinney, L.L.C. · filed 2009-12-16(a)(1)

We conclude that the entire lawsuit was subject to the automatic stay imposed by § 362 of the bankruptcy code ab initio, and that the trial court never acquired jurisdiction over the case.

A claim for violation of Section 362's automatic stay may be heard in D.C. Superior Court after the bankruptcy case has been dismissed.

Powell v. Washington Land Co., Inc. · filed 1996-11-07(h)

The appellant alleges in count II that the appellee's actions were in violation of the automatic stay provision of 11 U.S.C. § 362, and the appellant is entitled to relief in Superior Court from the violation of the bankruptcy court's stay. ... Thus, the trial court had jurisdiction to hear count II of appellant's complaint.

Section 362 permits a bankruptcy court to waive subsection (l)'s certification requirements and reimpose the automatic stay against eviction under subsection (b)(22), because that exception is not among those subsection (o) prohibits courts from staying.

In Re Weinraub · filed 2007-02-07(l), (b)(22), (o)

Therefore, there is a clear textual basis that the Court may stay any of the permitted actions found in § 362(b) that are not included in § 362(o). This ability to stay § 362(b)(22) permits the Court to waive the requirements of § 362®, because the power to re-impose the stay over § 362(b)(22) would be meaningless if the court could not also waive the requirements of § 362(1).

Section 362(a)(1) does not stay a defendant-debtor’s third-party complaint against a party originally outside the action on claims not directly related to the plaintiff-creditor’s initial complaint, or motions filed in connection with that third-party complaint.

McGuire v. Century Surety Co. · filed 2007-02-09(a)(1)

In keeping with cases from other jurisdictions and our own supreme court’s view that the automatic stay provision of Section 362 is clearly intended to benefit the bankrupt debtor, we hold that it does not apply to third-party complaints brought by a defendant-debtor against a party who originally was not a party to the action and on claims not directly related to the initial complaint brought by a plaintiff-creditor. This also applies to motions filed in connection with the third-party complaint.

Section 362(h)(1) leaves the automatic stay in place when a debtor enters a compliant reaffirmation agreement, even if the court does not approve it.

In re Henderson · filed 2013-05-22(h)(1)

Even if the court does not approve the reaffirmation agreement, however, the vehicle remains in the estate and is protected by the automatic stay so long as the reaffirmation agreement complies with Section 524(c).

Section 362(h)(1) specifies a consequence of failing to file a statement of intention but does not itself require the filing, which is required by Section 521(a)(2).

In Re Creighton · filed 2007-02-16(h)(1)

Moreover, subsection 362(h)(1) does not itself require the filing of the statement of intention; it merely specifies a consequence of failure to do so. The statement of intention is required by § 521(a)(2).

Section 362(h)(1)(A) terminates the automatic stay and removes personal property from the estate when a debtor states an intent to retain it without choosing redemption, reaffirmation, or lease assumption.

Dumont v. Ford Motor Credit Co. (In Re Dumont) · filed 2009-09-15(h)(1)(A)

Thus, while Dumont filed a statement of intention, and properly stated that she intended to retain the property, she failed to indicate one of the three permissible means of doing so. Accordingly, the automatic stay was terminated with respect to her automobile. Furthermore, the automobile was no longer the property of the estate.

Section 362(h)(1)(A) terminates the automatic stay and removes personal property from the estate when a debtor states an intent to retain it without indicating a permissible means of doing so.

Dumont v. Ford Motor Credit Company · filed 2009-09-15(h)(1)(A)

Thus, while Dumont filed a statement of intention, and properly stated that she intended to retain the property, she failed to indicate one of the three permissible means of doing so. Accordingly, the automatic stay was terminated with respect to her automobile. Furthermore, the automobile was no longer the property of the estate.

Section 362(h)(1) terminates the automatic stay as to personal property and removes it from the estate when a debtor fails to state an intent to redeem the property or reaffirm the secured debt.

DaimlerChrysler Financial Services Americas, LLC v. Jones · filed 2010-01-11(h)(1)

Sections 521(a)(2)(C) and 362(h) significantly alter the pre-BAPCPA analysis by explicitly requiring a debtor to indicate on the statement of intention an intent to either (1) redeem the prop- erty or (2) reaffirm the debt, in order to retain the property. If the debtor fails to so indicate, the stay terminates with respect to the property, and the property will no longer be part of the estate.

Section 362(h)(1) limits relief for a debtor’s failure to state or carry out an intention for secured personal property to termination of the automatic stay and removal of the property from the bankruptcy estate.

In re Williamson · filed 2015-11-02(h)(1)

Thus, the relief afforded by §§ 362(h) and 521(a)(2) is limited to termination of the automatic stay and removal of the property from the bankruptcy estate.

Section 362(h) lifts the automatic stay by operation of law for personal property when a debtor fails to timely file or perform a statement of intention, but provides no such relief for real property.

Vang · filed 2026-03-31(h)

For personal property, the consequence of a debtor’s failure to file a timely statement of intention under § 521(a) or to perform that intention timely is to remove the property from the bankruptcy estate and grant relief from the § 362(a) stay by operation of law. See 11 U.S.C. § 362(h). Congress provided no such mechanism for real property. So a secured creditor with respect to real property must seek relief from the § 362(a) stay and abandonment under § 554 to enforce its lien.

Section 362(a) does not stay an action against a debtor’s legally distinct, wholly owned subsidiary to recover the subsidiary’s property merely because the action reduces the value of the debtor’s ownership interest.

Kreisler v. Goldberg · filed 2007-02-26(a)(1), (a)(3)

Accordingly, because Just’s loss of the property affected only the value of Bask’s interests, we agree with the district court that § 362(a)(3) does not apply to the ejectment action against Just. ... In sum, we conclude that the automatic stay under 11 U.S.C.A. § 362(a) did not apply to Goldberg’s ejectment action against Just because the proceeding was not against a bankruptcy debtor and was not an action to obtain ownership or control of property of Kreisler’s bankruptcy estate.

Section 362(a)(1) and (3) do not stay an action against a debtor’s legally distinct, nonbankrupt wholly owned subsidiary to recover the subsidiary’s property merely because the action reduces the value of the debtor’s ownership interest.

Sanford Kreisler Bask Holdings, LLC v. Glenn H. Goldberg, T/a S. Goldberg-Cust Srg Properties No. 5, Llc, Creditors-Appe · filed 2007-02-26(a)(1), (a)(3)

The fact that Bask’s interest in Just may lose value, however, is not dispositive. The nature and extent of Bask’s interest in Just remains unchanged by Just’s loss of the property. ... In sum, we conclude that the automatic stay under 11 U.S.C.A. § 362(a) did not apply to Goldberg’s ejectment action against Just because the proceeding was not against a bankruptcy debtor and was not an action to obtain ownership or control of property of Kreisler’s bankruptcy estate.

Section 362(a)(1) bars pursuing prepetition claims against a Chapter 7 debtor’s corporate alter ego when those claims are effectively against the bankruptcy estate.

Capparelli v. AmeriFirst Home Improvement Finance Co. · filed 2008-02-01(a)(1)

By naming Tropical Pools as a defendant in this case, plaintiffs essentially filed a claim against the Lanier bankruptcy estate and violated the automatic stay entered in Lanier’s Chapter 7 bankruptcy action.

Section 362(a) stays proceedings against a debtor to recover prepetition claims, but does not stay actions against nondebtor guarantors.

Gander Partners LLC v. Harris Bank, N.A. (In Re Gander Partners LLC) · filed 2010-07-16(a)

Under Section 362 of the Bankruptcy Code the filing of a petition operates as a stay of the commencement or continuation of proceedings against the debtor to recover on prepetition claims. 11 U.S.C. § 362(a). This provision protects assets of the debtor’s estate but it does not stay actions against nondebtors, such as guarantors.

Section 362(a)’s automatic stay can extend to a nondebtor joint tenant and cosigner when the joint tenancy remains intact and a judgment against that tenant would effectively be a judgment against the debtor.

Heritage Contracting, L.L.C. v. Vasquez · filed 2010-09-07(a)

Therefore, since Singhsindh was an integral actor and since Vasquez’s filing for bankruptcy did not sever the parties’ joint tenancy, the present matter may be considered to be an “unusual circumstance” under the holding in Piccinin, and the bankruptcy stay extinguished Chopp’s lien as to both co-defendant joint tenants.

Section 362(a)(1) can stay litigation against a debtor’s guarantor when additional circumstances bring the suit within the unusual circumstances exception; the guaranty alone is insufficient.

In re Brier Creek Corporate Center Associates Ltd. · filed 2013-02-12(a)(1)

Rather, what is clear from these decisions, as provided in the Stay Order, is that a suit against a debtor’s guarantor does not in and of itself constitute “unusual circumstances,” but if there are other circumstances present bringing the guarantor litigation within the scope of the exception, then such litigation will be stayed pursuant to § 362(a)(1).

Section 362(a)(1) does not bar insisting that a debtor comply with a trial subpoena directed at claims against nondebtor defendants after the claims against the debtor have been severed.

Kenoyer v. Cardinale (In re Kenoyer) · filed 2013-03-20(a)(1)

Therefore, Ms. Caron’s insistence that Mr. Kenoyer comply with the Subpoena in the action against the non-debtor defendants did not violate the automatic stay. Defendants are entitled to summary judgment on Mr. Kenoyer’s claim that Defendants violated § 362(a)(1).

Section 362 stays an action against a debtor but ordinarily does not extend the stay to the debtor’s co-defendants; a narrow exception may apply.

Oravetz v. Berexco LLC · filed 2019-07-25

Plaintiffs’ action against defendants, International Energy Corporation and White Star Petroleum, LLC, is therefore stayed pursuant to 11 U.S.C. § 362. While section 362 of Title 11 extends the stay provisions of the Bankruptcy Code to the “debtor,” the rule followed in the Tenth Circuit and by the majority of other circuit courts is that the stay provision does not extend to the debtor’s co- defendants. See, Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1330 (10" Cir. 1984). A narrow exception to this rule has been recognized, see, A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994, 999 (4"" Cir.), cert. denied, 479 U.S. 876 (1986), but there is no indication in the notice that the remaining defendants would fall within the exception. Therefore, until otherwise notified, plaintiffs’ action continues as against the remaining defendants.

Section 362(a) bars litigation against nondebtor defendants when resolving those claims would necessarily involve the debtor.

Bell v. Koss · filed 2019-12-05(a)

It remains the case that there is no way to resolve Plaintiff’s claims against the individual defendants in this case without involving Exotic Euro Cars in the litigation, and involving Exotic Euro Cars would violate the automatic stay imposed by 11 U.S.C. § 362(a).

Section 362’s automatic stay can extend to a solvent co-defendant when its liability depends on the debtor’s and it has an absolute right to indemnity from the debtor.

Maguire-OHara Construction Inc v. Cool Roofing Systems Inc · filed 2020-02-11(a)

The situation here falls into the narrow exception requiring the Court to expand the automatic stay. There is not an independent basis for PIIC’s liability, and PIIC is entitled to indemnity by Cool Roofing on account of any judgment that might result against them.

Section 362(a)(2) and (3) stays actions against or seeking possession of bankruptcy estate property even when the action is against nondebtor defendants.

Brown v. Zive CA2/7 · filed 2021-11-16(a)(2), (a)(3)

However, the plain language of the statute is broader than the general rule might suggest: The automatic stay applies to all actions against or seeking possession of debtor property. (See 11 U.S.C. § 362(a)(2) & (3).) This is true for lawsuits against non-debtor defendants, even those in which the debtor is not a party.

Section 362(a)(1) generally protects the debtor from litigation and does not automatically protect a nondebtor co-defendant.

Aearo Technologies LLC v. Parties Listed on Appendix A to the Complaint et a · filed 2022-08-26(a)(1)

Without more explicit guidance from the Seventh Circuit, the Court declines Aearo’s invitation to extend § 362(a)(1) to 3M and instead frames its analysis pursuant to the Court’s authority to issue injunctive relief under § 105(a) of the Bankruptcy Code.

Section 362(a) automatically stays actions against the debtor but does not extend the stay to nondebtor defendants without a separate injunction under § 105(a).

Scott v. Massey · filed 2024-12-04(a)

The same is true here; no preliminary injunction has been issued, and neither this Court nor the bankruptcy court can otherwise “extend” the automatic stay to non-debtor defendants.

Section 362(a)'s automatic stay does not extend to a debtor partnership’s general partners merely because they have indemnification rights or manage its reorganization.

Crumpler v. Wetsel Seed Co. (In Re Southside Lawn & Garden/Suffolk Yard Guard) · filed 1990-05-16(a)

Based upon the rationale of Credit Alliance, this court finds that the automatic stay provisions of § 362 should not be extended to plaintiffs, and the court will not exercise its equitable powers under § 105 to accomplish this result.

The automatic stay prohibits the Social Security Administration from sending a postpetition payment demand to collect a prepetition debt.

In Re Hodges · filed 2007-02-28

The stay was violated when the SSA sent the debtor the post-petition letter seeking resolution of the pre-petition debt.

Section 362’s automatic stay covers SSA’s withholding of OASDI benefits to recover earlier SSI overpayments because obligations under the separate benefit programs do not qualify for the recoupment exception.

Thigpen v. United States · filed 2018-09-30(a)(6)

It follows that SSA’s withholding of Thigpen’s OASDI benefits to recover its prior SSI overpayments is a setoff, not a recoupment, and therefore that SSA’s withholding is not exempt from the automatic stay.

Section 362(j) orders confirming that the automatic stay has ended do not give creditors a substantive right to obtain a lien.

Banco Cooperativo de P.R. v. Herrera (In re Herrera) · filed 2018-10-03(j)

Neither § 362(c)(3)(A) nor the Comfort Orders issued pursuant to § 362(j) afford BCPR any right to obtain a lien in the Local Court.

Section 362(d)(2) requires relief from the automatic stay during a debtor’s plan exclusivity period if there is no realistic prospect of effective reorganization.

Infirst Bank v. Jager (In re Jager) · filed 2019-02-13(d)(2)

Regardless, what is clear to the Court is that the baseline for a motion for relief from stay filed during a debtor's exclusivity period is whether there is "any realistic prospect of effective reorganization" and where the answer is no, relief under § 362(d)(2) will be required.

Section 362(a)(3) prohibits a bank from assessing charges for another entity’s account activity against a debtor’s account after the bankruptcy petition.

Corporate Res. Servs., Inc. v. Wells Fargo Bank, N.A. (In re TS Emp't, Inc.) · filed 2019-02-28(a)(3)

Wells Fargo took an action against the debtor TSE and violated the automatic stay by assessing charges arising from activity in Tri-State accounts against TSE.

For judicial-immunity purposes, an automatic stay under § 362(a) does not deprive a state court of subject-matter jurisdiction over a case before it.

Agrawal v. Courts of Oklahoma · filed 2019-03-12(a)

But an automatic bankruptcy stay did not deprive Judge Ogden of subject-matter jurisdiction, broadly construed, over the state-court case.

Section 362’s distinction between regulatory actions and enforcement of monetary judgments determines whether the automatic stay applies, not whether the bankruptcy court has jurisdiction.

Griffin v. West Side Corp. (In Re Erlin Manor Nursing Home, Inc.) · filed 1985-09-25(b)(4)-(5)

The distinction is not jurisdictional; it is crucial only in deciding whether the automatic stay is applicable.

Section 362(a)(1) allows removal of a stayed state court action to the debtor’s bankruptcy court and a request for remand or abstention, but stays litigation of the underlying claims after removal.

In re Cashco, Inc. · filed 2019-03-25(a)(1)

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 removal. Nor does the automatic stay bar a party from seeking remand and abstention following removal. Filing a notice of removal to commence an adversary proceeding and filing a motion for remand and/or abstention following removal do not constitute a continuation of the underlying litigation. Neither action requires the Court to adjudicate the merits of the underlying claims. However, once a state court action subject to the automatic stay is removed, the automatic stay prevents continued litigation of the claims in the adversary proceeding before the bankruptcy court.

Section 362(a)(1) does not bar a federal court from remanding a prepetition action to state court because remand does not continue the action.

DIETERLY v. BOY SCOUTS OF AMERICA · filed 2020-06-24(a)(1)

A remand pursuant to 28 U.S.C. § 1452(b) simply does not constitute “commencement or continuation” of an action because the Court is not expressing an opinion as to the merits of Plaintiff’s claim and a remand does not affect the substantive rights of any party.

Section 362(a) stays a pending action to foreclose a property owner’s right of redemption when the owner files a chapter 13 case.

Darryenne Ford · filed 2020-10-16(a)

That foreclosure process is not complete and is stayed by the filing of this chapter 13 case. 11 U.S.C. § 362(a).

Section 362(a)(1) does not bar removal of a pending state court case to federal court because removal does not continue the state court proceeding.

INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 542 v. Mallinckrodt ARD, Inc. f/k/a Questcor Pharmaceuticals, Inc. · filed 2021-03-10(a)(1)

Because the removal of a case to federal court does not advance the state court litigation, removal is not considered a “commencement or continuation” of judicial proceedings.

Section 362(a) does not stay the filing of proofs of claim or adversary complaints in a bankruptcy case.

Ikechukwu H. Okorie · filed 2023-11-06(a)

The automatic stay operates as a stay of only the specifically enumerated types of action set out in the statute, § 362(a)(1-8), none of which include the filing of proofs of claim or adversary complaints.

Section 362(a)(1) does not bar remand of an improperly removed case because remand is not a continuation of the action.

Sanders v. Farina · filed 2014-11-18(a)(1)

In summary, the automatic stay does not bar a remand pursuant to 28 U.S.C. § 1441.

Section 362(a)(1) and (6) stays enforcement of a prepetition arrest warrant used to collect a debt but does not require the municipality to recall the warrant when it has taken no action to enforce it after the bankruptcy filing.

Edwards v. The City of Ferguson · filed 2019-07-03(a)(1), (a)(6)

Enforcement of the warrant is simply stayed while the automatic stay is in effect. Appellant has failed to identify any post-petition action by the City that would be in violation of the stay.

Section 362(d)(1) allows a purchaser at a foreclosure sale to seek relief from the automatic stay as a party in interest.

In Re James G Maxwell · filed 2021-12-28(d)(1)

Under these standards, Appellee qualifies as a party in interest and had standing to bring the Motion.

A party with complete equitable title to foreclosed property has standing as a party in interest to seek relief from the automatic stay under § 362(d).

Verma v. Deutsche Bank Trust Company · filed 2019-08-22(d)

It cannot be said, then, that Deutsche Bank was not a “party in interest” with standing to seek relief from an automatic stay under 11 U.S.C. § 362(d).

A holder of a note and mortgage has standing to seek relief from the automatic stay.

In Re: Andrea Genrette · filed 2019-09-27(d)(1)

This Court properly considered all relevant information in determining that Bank of New York is a holder of the Note and Mortgage, and in turn had standing to seek relief from the automatic stay.

Section 362(d) allows a creditor with a colorable claim to seek relief from the automatic stay as a party in interest.

Selene Finance LP v. United States Bankruptcy Court for the Western District of Oklahoma · filed 2020-01-16(d)

Section 362(d) provides that a “party in interest” may seek stay relief, and creditors are parties in interest. ... The Bankruptcy Court properly concluded that Selene had standing to seek stay relief and established a colorable claim for relief from the automatic stay.

A party seeking relief from the automatic stay needs only a colorable claim to the property; the stay proceeding does not determine whether its lien is valid, perfected, and enforceable.

Lauren John Paulson · filed 2020-03-31(d)

Litigation over relief from stay is not a determination that movant holds a valid, perfected, and enforceable lien. The movant need only have a “colorable claim” to the property at issue.

Section 362’s automatic stay protects the debtor and the bankruptcy estate, so an unrelated litigant lacks standing to appeal an order lifting the stay when that order does not harm the litigant.

In re: Sharon Hamilton · filed 2020-10-30

This result is consistent with the purpose of the automatic stay, which is intended to protect the debtor and the bankruptcy estate – not individual creditors or other unrelated litigants.

Section 362(d) allows a party in interest to seek relief from the automatic stay without filing a proof of claim.

Palladino v. HSBC Bank Trustee · filed 2020-11-24(d)

But Section 362 requires only that a movant be a “party in interest”; nowhere does it specify that the party must also have filed a proof of claim.

A claim for relief from a violation of the automatic stay under § 362(a)(6) must be raised in bankruptcy court in the first instance.

Peterson v. Wells Fargo Bank, N.A. · filed 2021-03-17(a)(6)

To the extent Count Two additionally rests on alleged violations of 11 U.S.C. § 362(a)(6), I do not have subject matter jurisdiction to resolve the claim because such a claim must be raised in Bankruptcy Court in the first instance.

A loan servicer has standing to seek in rem stay relief under § 362(d)(4) when documents support a colorable claim that it services the secured loan; admissible evidence is unnecessary to establish standing.

Claire Dees · filed 2021-08-12(d)(4)

Because NewRez’s standing requires determination of nothing more than whether documentation supports its standing allegation, i.e., whether its claim is colorable, evidence admissible under the Evidence Rules is not required with regard to standing.

A minor discrepancy between a loan servicer’s name in court and its name in borrower correspondence does not defeat its standing to seek relief from the automatic stay.

Dees v. New Rez LLC · filed 2022-07-29(d)

Appellant has given this Court no reason to think that a minor discrepancy between Appellee’s full name used in legal proceedings and the name it uses when communicating with accountholders calls into question Appellee’s standing in this matter.

A party subject to the automatic stay is a party in interest who may seek relief from the stay under § 362(d).

Marguerite Potter v. · filed 2024-06-26(d)

Consistent with that standard, a “party in interest” for purposes of a § 362(d) proceeding includes any party who is subject to the automatic stay.

A party whose ownership of property is established by a final foreclosure judgment has standing to seek relief from the automatic stay.

Ulish Kerry Terrace Booker, III · filed 2025-07-18

This court again reiterates that based on the record before the court, ownership of the Property transferred to U.S. Bank four years ago based on a non-appealable, final state court judgment, and therefore, U.S. Bank has standing to seek relief from this court.

A holder of a recorded trustee’s deed has a colorable ownership claim sufficient to seek relief from the automatic stay to pursue eviction.

In re Philip Gregory Ketchum and Dawn Maurine Ketchum · filed 2026-04-23(d)(1)

Lakeview has therefore demonstrated that it has a colorable claim as the owner the Property to enforce its rights under Missouri law to remove the Ketchums from the Property.

A party seeking relief from the automatic stay under § 362(d) bears the burden of proving its status as a party in interest.

Miller v. Deutsche Bank National Trust Co. · filed 2012-02-01(d)

We conclude that Deutsche Bank bears the burden of proving its statutory standing as a “party in interest.”

Section 362(d)(2) requires a party seeking relief from the automatic stay to establish standing, including a right to enforce the underlying note.

In Re Lippold · filed 2011-09-06(d)(2)

But the lack of objection does not relieve U.S. Bank from the burden of establishing its right to relief. The Court denies the Motion because U.S. Bank has not established its standing for stay relief.

A creditor with a claim against estate property is a party in interest with standing to seek relief from the automatic stay.

Rothman v. Friedman Vartolo, LLP · filed 2024-02-20(d)(1)

And because SN Servicing has a claim and/or is a creditor, it is a proper party-in-interest that has standing to file pleadings seeking relief from the automatic stay.

Section 362 does not stay state court proceedings concerning support obligations, child custody, or visitation.

IPPOLITO VS. TOBIA IPPOLITO (FM-14-0147-13, MORRIS COUNTY AND STATEWIDE) · filed 2020-05-08(b)(2)(A)

Tobia's January 18, 2016 bankruptcy petition triggered the automatic stay provisions of 11 U.S.C. § 362. On January 20, the trial judge acknowledged he was aware of the bankruptcy petition, but the judge properly held that the petition's filing did not operate as a stay of state court matters dealing with support obligations, child custody and visitation, so he limited the testimony that ... followed to those discrete issues.

Section 362(b)(2) excludes proceedings to establish or modify domestic support obligations and to dissolve a marriage from the automatic stay.

In re Holland · filed 2016-09-22(b)(2)

Section 362(b)(2) expressly excludes certain domestic relations matters from the automatic stay, among which are the establishment or modification of a domestic support obligation and the dissolution of a marriage.

Section 362(b)(2)(A) excludes proceedings for domestic support obligations, child custody, and dissolution of marriage from the automatic stay, except when dissolution proceedings seek to divide property of the bankruptcy estate.

Koch v. Koch · filed 2019-10-02(b)(2)(A)(ii)–(iv)

The filing of a bankruptcy petition does not, however, automatically stay domestic support, child custody, or dissolution of marriage proceedings, except to the extent that a dissolution of marriage proceeding seeks to determine the division of property that is property of the estate.

Section 362(b)(2) permits a family court to direct transfers of exempt assets in a dissolution proceeding when their exempt status is no longer subject to challenge.

Harry Beck Greenhouse · filed 2022-06-29(b)(2)

Some things are expressly allowed by the automatic stay exception in § 362(b)(2). As applied here, unless the exempt status of the Health Savings Account and IRA remain subject to challenge, the family court had the authority to direct the Debtor to transfer one-half of his interest in the Vanguard IRA and to transfer his Health Savings Account.

Section 362(b)(2)(A) permits a state court to establish or modify domestic support obligations and resolve child support, custody, or visitation issues despite the automatic stay.

Bruce L. Platt · filed 2023-12-15(b)(2)(A)

As discussed herein, the Court concludes that the exception to the automatic stay in 11 U.S.C. § 362(b)(2)(A) permits the state court to establish or modify domestic support obligations and to resolve child support, custody, or visitation issues.

Section 362(b)(2)(A)(iv) allows a divorce proceeding to continue, but the automatic stay still bars division of property of the bankruptcy estate.

James Meredith · filed 2025-05-08(b)(2)(A)(iv)

That exception, however, does not extend to property division that includes estate property.

Section 362(a)(4) and (5) bar prejudgment attachment that would create a lien against estate property or the debtor’s property while the automatic stay applies.

Anderson v. Horton · filed 2019-10-07(a)(4), (5)

The Motion for Prejudgment Writ of Attachment is clearly barred by the automatic stay because Plaintiff is attempting to create a lien against property of the bankruptcy estate or property of the debtors.

Section 362(b)(2)(C) exempts income withholding for domestic support obligations from the automatic stay whether garnishment begins before or after the petition and whether the income belongs to the estate or the debtor.

In Re Gellington · filed 2007-03-08(b)(2)(C)

Although both parties to the current dispute claim this language is somewhat ambiguous, it seems clear to this Court that Congress did not intend to automatically stay the collection of a domestic support obligation, whether it arises from a pre or postpetition garnishment action from property of the estate or property of the debtor.

Section 362(b)(2)(B) permits collection of a domestic support obligation, including an attorney’s fee award arising from child support litigation, from the debtor’s exempt property without violating the automatic stay.

In Re O'Brien · filed 2007-04-17(b)(2)(B)

Because the Fee Award is a domestic support obligation, it is not subject to the automatic stay to the extent Carlin seeks to collect it from the Retirement Accounts (or any other exempt property of the Debtor).

Section 362(b)(2)(B) excepts collection of domestic support obligations from the automatic stay only when collection is from property outside the bankruptcy estate.

Caffey v. Russell (In Re Caffey) · filed 2008-01-28(b)(2)(B)

While the Bankruptcy Code does have an exception to the stay for collection of domestic support obligations, it only pertains to property that is not property of the debtor’s estate.

Section 362(b)(2)(C) permits withholding a debtor’s income under a judicial wage deduction order to pay a domestic support obligation without violating the automatic stay.

In Re Fort · filed 2009-06-30(b)(2)(C)

While the filing of a petition in bankruptcy ordinarily operates to stay the collection or enforcement of a debt by a creditor, § 362(b)(2)(C) provides that "[t]he filing of a petition ... does not operate as a stay... with respect to the withholding of income that is property of the estate or property of the debtor for payment of a domestic support obligation under a judicial or administrative order or a statute[.]" 11 U.S.C. § 362(b)(2)(C) (emphasis added). It is clear that the wage deduction order is pursuant to a judicial order within the meaning of this statute. ... Therefore, this Court concludes that the actions of the State of Florida in this regard did not violate the automatic stay.

Section 362(b)(2)(C) permits withholding income under a judicial wage deduction order to pay a domestic support obligation despite the automatic stay.

Fort v. State of Florida Department of Revenue · filed 2009-06-30(b)(2)(C)

It is clear that the wage deduction order is pursuant to a judicial order within the meaning of this statute.