11 U.S.C. § 362

When a debtor has made substantial payments, a secured equipment lender seeking stay relief for lack of adequate protection must quantify how much its collateral is declining in value relative to those payments.

In Re Elmira Litho, Inc. · filed 1994-11-28(d)(1)

Instead, the secured creditor must demonstrate quantitatively that its collateral is declining in value at a faster rate than it has or will be compensated.

Section 362(d)(1) requires adequate protection against a decline in collateral value, but does not entitle an oversecured creditor to periodic postpetition interest payments to preserve its equity cushion.

In Re Delta Resources, Inc., Debtor. Orix Credit Alliance, Inc. v. Delta Resources, Inc. · filed 1995-06-14(d)(1)

Here, even accepting the bankruptcy court’s assumption that Orix was an overse-eured creditor, although it never made such a factual finding, for the reasons stated above, Orix, as a matter of law, was not entitled to receive periodic payments for accruing post-petition interest as part of adequate protection for any period of time.

Section 362(d)(1) allows the stay to remain in place with adequate protection payments when a secured creditor’s collateral is depreciating.

In Re Double Eagle Construction, Inc. · filed 1995-11-07(d)(1)

For this reason, Imperial’s Motion to Lift Stay will be DENIED. However, since there is no dispute that Imperial’s collateral, by its very nature, is depreciating, Imperial is entitled to adequate protection payments. 11 U.S.C. § 362(d)(1).

An oversecured vehicle creditor is not entitled to periodic adequate protection payments or relief from the stay under § 362(d)(1) without evidence that the vehicle is depreciating.

In Re Juhasz · filed 1995-11-14(d)(1)

Under Section 362(d) of the Bankruptcy Code, the court shall grant relief from the automatic stay, such as terminating, annulling, modifying, or conditioning the stay, for cause, including the lack of adequate protection (Section 362(d)(1)), or if the debtor does not have an equity in the property, and the property is not necessary to an effective reorganization (Section 362(d)(2)). ... There is no evidence before the court regarding the level of depreciation of the Vehicle. Thus the court declines at this time to order periodic postpetition payments as adequate protection of Beneficial’s interest. ... Thus the court will deny the motion for relief from the stay without prejudice to a later refiling upon a change in circumstances or a showing of the decline in value of the Vehicle.

Section 362(d) requires a creditor to request relief from the automatic stay before it can obtain adequate protection of its collateral.

In Re Cason · filed 1995-12-14(d)

Sections 362(d), (f), and §, 363(e) all provide that relief is allowed but only after a request of a party in interest.

Section 362(d)(1) permits denial of stay relief for lack of adequate protection when a Chapter 13 trustee holds plan payments for later distribution, because the funds held by the trustee protect the secured creditor.

In re Williams · filed 1996-01-02(d)(1)

It should be noted that the consistent policy of this Court has been to deny motions for relief from the automatic stay filed by secured creditors when the Trustee holds the money to the following month. The reason for this is that, although the creditor will not receive the money, the money is held by the Trustee and that fact ensures adequate protection.

Section 362(d)(1) requires relief from the automatic stay when adequate protection is lacking; denying relief does not itself mean the debtor provided adequate protection.

Vincent Properties, Inc. v. Five Star Partners, L.P. (In Re Five Star Partners, L.P.) · filed 1996-02-26(d)(1)

If a court finds a lack of adequate protection, it finds cause for relief from the automatic stay and must grant the creditor’s motion, but it is illogical to conclude that the converse is always true. Nothing in section 362(d) implies that if the court does not lift the stay, the trustee is therefore providing adequate protection. Rather, it requires only that the bankruptcy court test for the presence or absence of adequate protection in deciding whether or not to grant relief to a movant.

Section 362(d)(1) permits lifting the automatic stay when a debtor fails to make adequate protection payments based on the value of retained collateral.

In Re Jenkins · filed 1997-09-17(d)(1)

Based on these findings of fact and conclusions of law, adequate protection payments shall be based on a vehicle value of $2,480.00. That value shall also be used for Chapter 13 plan purposes should Jenkins decide to retain and use the vehicle. Failure to make adequate protection payments based on this value shall result in a lifting of the automatic stay.

Under § 362(d)(1), a creditor seeking stay relief for lack of adequate protection must initially show a valid secured claim and an actual or threatened decline in collateral value before the debtor must prove the collateral is stable or the creditor is otherwise adequately protected.

In Re Self · filed 1999-10-14(d)(1)

To establish a prima facie case for cause due to a lack of adequate protection, a movant must initially demonstrate that it holds a claim, secured by a valid, perfected lien upon estate property, and that a-decline in the value of its collateral is either occurring or is threatened, against which the creditor is precluded from protecting its interests due to the existence of the automatic stay. Only upon presentation of such a prima facie case by a movant does the burden shift to the debtor-respondent to prove that the collateral is not declining in value or that the secured creditor is otherwise adequately protected.

A creditor seeking relief from the automatic stay for lack of adequate protection must first make a prima facie showing of cause, although the debtor bears the ultimate burden of persuasion on adequate protection.

In Re Rogers · filed 1999-10-14(d)(1)

As is typical, the Bank also seeks relief from the stay “for cause” under § 362(d)(1), alleging a lack of adequate protection of its interest in the Collateral. While a respondent ultimately carries the burden of persuasion to establish that a movant’s interests in certain collateral are adequately protected, the movant must again first establish a prima facie case that such cause exists.

Section 362(d)(1) requires relief from the automatic stay for cause when an undersecured creditor lacks adequate protection against continuing depreciation of its collateral.

In Re Zeoli · filed 2000-06-01(d)(1)

These facts— collateral worth less than the debt which it secures, continuing erosion in the value of the collateral and debtors without the assets, income or inclination to provide “adequate protection”— present an archetype of “cause” for relief from stay under Section 362(d)(1).

For a motion to modify or lift the automatic stay, collateral is valued as of the petition date to assess adequate protection before confirmation.

In Re Farmer · filed 2000-11-16(d)(1)

IT IS ORDERED that under the dual valuation method, the petition date shall be used as the date to establish a value for motions to modify or for relief from the automatic stay, and the confirmation date shall be used as the date to establish the value for satisfying the confirmation requirements of 11 U.S.C. § 1325(a)(5)(B).

Section 362(d)(1) entitles a creditor to relief from the automatic stay when its interest lacks adequate protection.

In Re Duran · filed 2001-12-04(d)(1)

Because of the foregoing, Mr. Duran has offered no adequate protection and EMC is entitled to relief from the automatic stay.

Section 362(d)(1) does not provide relief from the automatic stay based on lack of adequate protection when the movant has no interest in the debtor’s property.

New England Dairies, Inc. v. Daily Mart Convenience Stores, Inc. · filed 2003-11-20(d)(1)

For the reason stated above, however, NED has no interest in Dairy Mart’s property. It cannot show that it is entitled to adequate protection. As a result, NED is not entitled to relief from the automatic stay.

Section 362(d)(1) permits relief from the automatic stay for lack of adequate protection despite an equity cushion when the secured debt is due, the creditor receives no payments or replacement lien, and no sale or refinancing is planned.

In Re King · filed 2004-02-03(d)(1)

Unless a sale or refinance is contemplated to payoff the debt owed to UVCC, UVCC is not adequately protected because they are not receiving periodic payments, have not been given a replacement lien, and the entire indebtedness is due. The only adequate protection UVCC has is the equity cushion that can only be realized on the sale of the property at issue. As no refinance or sale is contemplated, the stay must be lifted to allow UVCC to enforce its security interest against Debtor’s property.

Under Section 362(d)(1), once a creditor makes a prima facie showing of inadequate protection, the debtor must prove adequate protection, and failure to carry that burden warrants relief from the stay.

Joyner Auto World v. George (In Re George) · filed 2004-02-24(d)(1), (g)

Similar to § 362(d)(2), the burden of proof on a motion for relief from stay under § 362(d)(1) shifts from the movant’s initial showing of “cause” to the party opposing the motion. ... Because Debtor failed to demonstrate that $80.00 per month for four years will adequately protect the interests of the Movant, the Motion for Relief from Stay is granted pursuant to 11 U.S.C. § 362(d)(1).

Section 362(d)(1) permits relief from the stay when a tax-sale purchaser's lien risks cancellation under a statutory deadline and the debtor's confirmed plan does not adequately protect the lien.

In Re Thompson · filed 2004-04-29(d)(1)

BG Investment’s rights are at risk, and Thompson has failed to show how these rights are protected under the confirmed amended plan. Thompson has not offered BG Investments adequate protection of its lien. Therefore, BG Investments is entitled to relief under 11 U.S.C. § 362(d)(1).

Section 362(d)(1) permits relief for lack of adequate protection even without a current decline in collateral value when the debtor uses the collateral, the creditor pays its maintenance, and the debtor cannot sell it or generate income for adequate protection payments.

In Re Balco Equities Ltd., Inc. · filed 2004-07-09(d)(1)

In any event, decline in value of collateral is not the only means by which a secured creditor may lack adequate protection. Where the collateral is in use, the secured creditor is paying to maintain the collateral, and the debtor has been unable to sell the collateral or generate income to make adequate protection payments, the effect from the creditor’s viewpoint is identical. ... Where, as here, the Debtor cannot provide adequate protection, the stay must be lifted.

Section 362(d)(2) permits relief from the automatic stay when the debtor lacks equity in the property and no effective reorganization is possible within a reasonable time.

Viper Mining Co. v. Diversified Energy Venture (In Re Diversified Energy Venture) · filed 2004-07-12(d)(2)

We conclude for reasons set forth in this memorandum opinion that relief from the automatic stay was appropriate because debtor had no equity in the realty in question. In addition, said realty is not necessary for an effective reorganization as no reorganization is possible within a reasonable period of time. ... We therefore conclude in light of the foregoing that Viper Mining is entitled to relief from the automatic stay in accordance with § 362(d)(2) of the Bankruptcy Code.

Section 362(d)(2) requires relief from the automatic stay when the debtor lacks equity in the property and no reorganization is possible in a Chapter 7 case.

In Re Desroches · filed 2004-08-31(d)(2)

Because the Homestead is subordinated to the Mortgage, the Debtors have no equity in the Residence, and, because no reorganization is possible in a Chapter 7 case, the Motion must be granted under 11 U.S.C. § 362(d)(2).

Failure to provide adequate protection of a creditor’s interest in property constitutes cause for relief from the automatic stay.

In Re Miller · filed 2005-02-04(d)(1)

Based on the foregoing, the Court orders that because the Debtor has failed to provide Adequate Protection of Conseco’s interest in the property, such failure constitutes cause for lifting the Automatic Stay.

Section 362(d) permits relief from the automatic stay when a secured creditor lacks adequate protection and the debtor’s interest in the property has expired through failure to redeem within the extended redemption period.

Dowding v. Open Terrace Associates, LLC (In Re Dowding) · filed 2005-02-04(d)(1)–(2)

Applying these principles to this case, the bankruptcy court correctly concluded that Open Terrace would not receive adequate protection without relief from the automatic stay, see 11 U.S.C. § 361; and that, at any rate, Dowding’s interest in the two properties at issue had been extinguished when he failed to redeem them during the 60- day extended period granted by the filing of his bankruptcy petition, see 11 U.S.C. § 108(b); In re Glenn, 760 F.2d 1428, 1440 (6th Cir. 1985).

Under § 362(d)(1), a movant seeking stay relief for lack of adequate protection must initially show a claim secured by a valid, perfected lien on estate property and an occurring or threatened decline in collateral value.

In Re Box · filed 2005-05-03(d)(1)

To establish a prima facie case for cause due to a lack of adequate protection, a movant must initially demonstrate that it holds a claim, secured by a valid, perfected lien upon estate property, and that a decline in the value of its collateral is either occurring or is threatened. ... Accordingly, the Court denies FSB’s Motion to Lift Stay because it has no valid lien to protect.

Section 362(d)(1) permits relief from the automatic stay for lack of adequate protection when a debtor's prepetition delinquency is compounded by failure to comply with an adequate protection payment order.

Elias v. Sumski (In Re Elias) · filed 2006-06-02(d)(1)

Nor does the debtor argue that his original delinquency, coupled with his failure to comply with the adequate protection order, did not constitute "cause" for granting relief from the automatic stay under 11 U.S.C. § 362(d). Any such argument would be unavailing, given the statute's definition of "cause" as "including the lack of adequate protection of an interest in property of [a] party in interest." Id. § 362(d)(1).

Relief from the automatic stay for lack of adequate protection requires evidence of the secured debt’s amount so the court can assess whether the creditor’s interest is adequately protected.

In Re Kleibrink · filed 2006-08-02(d)(1)

Without any evidence of the amount of the debt, the Court is unable to find cause to lift the stay. While the Debtor testified that he believes the Property is worth about $100,000, the Court is unable to determine whether Wilmington’s interest in the Property is adequately protected.

An equity cushion and continued possession and use of collateral by a creditor’s affiliate can provide adequate protection under § 362(d)(1), and equity in the collateral precludes relief under § 362(d)(2).

In Re Pelham Enterprises, Inc. · filed 2007-10-15(d)(1), (d)(2)

Based on the preponderance of the evidence, the Court finds and concludes that the Creditor’s security interests in the personal property are adequately protected by an equity cushion of value over the amount claimed by the Creditor and the continued possessory interest in the property by an affiliate of the Creditor, which has the property and is using the property in its ongoing restaurant operations. Thus, the Court holds that relief under § 362(d)(1) or (d)(2) is inappropriate at this time.

Relief from the automatic stay for lack of adequate protection requires the movant to establish a debt, a security interest securing that debt, and declining collateral value coupled with the debtor’s failure to provide adequate protection.

In Re Weiss · filed 2007-10-23(d)(1)

In order to prevail under Bankruptcy Code Section 362(d)(1), R.C.M. and the Marconi Trust must establish the following elements: (1) a debt owing from Weiss to R.C.M. and the Marconi Trust; (2) a security interest held by R.C.M. and the Marconi Trust that secures the debt at issue; and (3) a decline in the value of the collateral securing the debt, along with Weiss’ failure to provide adequate protection of their interest. ... For the reasons stated above, R.C.M. and the Marconi Trust, as unsecured creditors, have not established cause to modify the automatic stay under Bankruptcy Code Section 362(d).

Under § 362(d)(1), a debtor’s pending lawsuit is too speculative to provide adequate protection of a creditor’s property interest and does not prevent relief from the automatic stay for cause.

In Re: Rocco · filed 2007-11-28(d)(1)

bankruptcy courts in this Circuit have held that a lawsuit is too speculative in nature to offer adequate protection. ... In general, and in this specific instance, we agree with that conclusion. Thus, the Bankruptcy Court did not abuse its discretion in finding that there was cause for lifting the stay and that the Roccos had not offered adequate protection.

Section 362(d)(1) requires relief from the stay for lack of adequate protection when necessary property repairs depend on financing the debtor cannot obtain.

In Re Strug-Division LLC · filed 2008-01-14(d)(1)

Since they cannot do so under § 364(d)(Z), and no other committed financing has been shown to be available, Debtors have not met their burden to show adequate protection under 11 U.S.C. § 362(d)(1). This is so because the properties are in need of substantial repairs to improve them and the capital to pay for repairs is not available. ... Therefore, the stay was modified.

A disputed mortgage-rescission claim that has not been resolved in the debtor's favor does not justify reconsidering relief from the automatic stay based on lack of equity because the mortgage lien remains effective.

In Re Augustin · filed 2008-03-03(d)

Bankruptcy Judge Rosenthal was aware of Augustin's contentions and decided that, because Augustin's TILA rescission claim is disputed and has not been resolved in his favor, the mortgage lien remains effective and nothing warrants reconsideration of the Order Granting Relief. That decision was not clearly erroneous as a matter of law and, therefore, did not constitute an abuse of discretion.

Failure to fund post-confirmation payments to a secured creditor can justify relief from the automatic stay, but subsequent payments satisfying the creditor’s request render the motion moot.

Wells Fargo Financial Georgia, Inc. v. Baxter (In Re Williams) · filed 2008-03-28(d)(1)

As a result of this lack of funding, Wells Fargo would be entitled to relief from the automatic stay under 11 U.S.C. § 362(d)(1); ... however, at the hearing and in its post-hearing brief, Wells Fargo indicated it had no real desire for relief from the stay. ... As previously discussed, Wells Fargo has received sums sufficient to satisfy its request, therefore, Wells Fargo’s motion for relief is moot.

Under § 362(d)(1), reliance on a nondebtor’s voluntary adequate-protection payments requires persuasive evidence that those payments are within reasonable prospect.

In Re Henderson · filed 2008-05-07(d)(1)

Although there appears to be no prohibition on non-debtor parties making adequate protection payments for a debtor, such payments must be within reasonable prospect. ... In this case, there is no persuasive evidence that Worthy has the ability to or will definitely make such adequate payments to First Citizens. ... Therefore, the Court finds that the Motion should be granted pursuant to 11 U.S.C. § 362(d)(1) for lack of adequate protection.

Section 362(d)(1) permits post-confirmation stay relief when a chapter 13 plan does not provide for a secured claim, the debtor provides no payments or other adequate protection, and ambiguous plan language does not preclude that relief.

In Re Stuart · filed 2009-03-15(d)(1)

Because the Confirmed Plan does not provide for Homecomings’ secured claim under 11 U.S.C. § 1325(a)(5)(B) or § 1322(b) and the Debtor has failed to make periodic payments to Homecomings or otherwise provide Homecomings with adequate protection of its property interest, I find that Homecomings is entitled to relief from the automatic stay under 11 U.S.C. §. 362(d)(1). I find further that the provisions of the Confirmed Plan, binding on Homecomings, do not preclude relief under § 362(d)(1).

Monthly plan payments that exceed the mortgage payment can adequately protect a secured creditor’s interest and defeat relief from the automatic stay for cause.

In Re Caldwell · filed 2009-08-27(d)(1)

Coastal’s monthly mortgage payment is $2,168.76. The Plan payment exceeds the mortgage payment. The monthly Plan payment provides adequate protection of Coastal’s interest in the Property. No cause exists for granting Coastal relief from the automatic stay pursuant to 11 U.S.C. Section 362(d)(1).

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

In Re McLaughlin · filed 2009-09-03(d)(1)

Accordingly, the Court finds that Ocean Bank is not adequately protected and is entitled to relief from the automatic stay under § 362.

Section 362(d)(1) permits relief from the automatic stay for lack of adequate protection, but a substantial equity cushion can adequately protect a secured creditor and defeat that request.

In Re Blx Group, Inc. · filed 2009-10-20(d)(1)

The substantial equity cushion adequately protects CIP and thus, its request for relief under § 362(d)(1) is denied.

An equity cushion can adequately protect a secured creditor under § 362(d)(1) and support denial of relief from the automatic stay even when mortgage payments have not been made.

In Re Snyder · filed 2009-11-13(d)(1)

An equity cushion may provide adequate protection even though not a single mortgage payment has been made. ... In the instant ease the evidence shows that Pruyn is protected by an equity cushion, not including interest on other secured claims, of $44,103.89. More importantly, the evidence shows that Linda would suffer substantial loss in the event the Court granted relief from the stay, and no economic harm will result to Pruyn under Linda’s proposed amended Plan.

Under § 362(d)(1), an undersecured creditor may be entitled to adequate protection despite the lack of equity in its collateral.

First Commonwealth Bank v. Onasni Property Group, LLC (In Re Onasni Property Group, LLC) · filed 2010-03-10(d)(1)

Regarding the Bank’s statement that it is not adequately protected and is therefore entitled to relief from stay for cause and Debtor’s assertion that the Bank is not entitled to adequate protection as an undersecured creditor, the Court finds that Debtor is in error. The United States Supreme Court has addressed this issue and determined that undersecured creditors can be entitled to adequate protection.

Section 362(d) permits a court to require adequate protection payments to keep the automatic stay in place while a creditor’s standing to seek relief is resolved.

In Re Aniel · filed 2010-04-21(d)

Under such circumstances, justice dictates that Debtors make adequate protection payments pending resolution of the standing issues. The court will not continue the stay with all of the risk being borne by the creditor.

Section 362(d)(1) does not allow relief from the automatic stay for lack of adequate protection when the secured creditor is receiving adequate protection payments.

In Re Green · filed 2010-08-11(d)(1)

Accordingly, Wells Fargo’s own evidence shows that it is now receiving adequate protection, and therefore, there is no cause to modify the automatic stay at this time.

Section 362(d)(1) permits relief from the automatic stay for cause when declining equity and the absence of adequate protection payments leave a secured creditor inadequately protected.

StellarOne Bank v. Lakewatch LLC (In Re Park) · filed 2010-08-31(d)(1)

Since the March 23 Order was entered, the 8/10 Equity Analysis shows that equity in the property has decreased by a significant amount. This decrease in equity only furthers the Court’s previous finding that StellarOne is not adequately protected. Post July 31, 2010 Lakewatch has not proposed any adequate protection payments to StellarOne and therefore, the Court finds that cause exists to grant the Motion for Relief under 11 U.S.C. § 362(d)(1).

Section 362(d)(1) does not require a fixed minimum equity cushion for adequate protection; its sufficiency depends on the facts of each case.

In Re Panther Mountain Land Development, LLC · filed 2010-10-22(d)(1)

But it does not follow that even the most microscopic equity cushion would automatically fail to provide adequate protection if the chances of jeopardizing the creditor’s interest were also de minimis. The sufficiency of the equity cushion must be evaluated on the facts of each individual case.

Section 362(d)(1) permits relief from the automatic stay when a superior tax lien leaves a mortgage creditor without adequate protection despite regular mortgage payments.

Orrstown Bank v. Biltwood Properties LLC (In re Biltwood Properties LLC) · filed 2012-05-25(d)(1)

Even if Debtor continues to make regular monthly mortgage payments, Orrstown’s secured position is not adequately protected because of the existence of a superior tax lien. Therefore, under 11 U.S.C. § 362(d)(1), relief from the automatic stay will be granted.

Section 362(d)(1) requires adequate protection of a creditor’s security interest in depreciating collateral through monthly payments at least equal to depreciation, and the debtor must show that proposed payments suffice.

In re Leonard · filed 2014-03-04(d)(1)

Since Debtor lacks equity and the aging auto is depreciating in value, Debtor must adequately protect the security interest of the Creditor. 11 U.S.C. § 362(d)(1). This must be done by monthly payments that can be no less than the amount of depreciation. Debtor has the burden of showing evidence that its monthly Plan payment will be sufficient to do that.

Section 362(d)(1) permits relief from the stay for lack of adequate protection when an insured vehicle is depreciating, the loan is in default, and no equity cushion protects the creditor.

Gess v. Randolph Brooks Credit Union · filed 2015-03-18(d)(1)

Because vehicles depreciate in value relatively quickly through use, cash payments, in addition to insurance, are typically required to adequately protect the creditor. The Credit Union established that the loan was in default at the time it filed its Motion for Relief from the Stay and, as discussed below, that there was no equity cushion to protect against decline in value. Because the Credit Union established that its interest was not adequately protected, the Bankruptcy Court did not clearly err in holding that cause existed to lift the stay under § 362(d)(1).

Under § 362(d)(1), a creditor may obtain relief from the stay for lack of adequate protection when a vehicle loan is in default and there is no equity cushion against depreciation, even if the vehicle is insured.

Gess v. Randolph Brooks Federal Credit Union (In re Gess) · filed 2015-03-18(d)(1)

Insurance on a vehicle is, indeed, necessary to adequately protect a secured creditor’s interest in it. ... The Credit Union established that the loan was in default at the time it filed its Motion for Relief from the Stay and, as discussed below, that there was no equity cushion to protect against decline in value. Because the Credit Union established that its interest was not adequately protected, the Bankruptcy Court did not clearly err in holding that cause existed to lift the stay under- § 362(d)(1).

Section 362(d)(1) does not permit stay relief for failure to make adequate protection payments when the creditor fails to show that its interest in the property declined during the bankruptcy case.

In re 300 Washington Street LLC · filed 2015-03-31(d)(1)

In this case, the City has not convincingly demonstrated that the value of the Property has declined since the petition date. Although a water main broke in the Property post-petition, the facts of this singular event do not establish that the City’s interest in the Property has declined during the case. Thus, the City is not entitled to adequate protection payments, and the Debtor’s failure to remit same is not cause for stay relief.

Section 362(d)(1) permits relief from the automatic stay when a lienholder receives no payment and its interest is not adequately protected.

In re Wolfe · filed 2015-06-19(d)(1)

First, cutting through all the history and complications, there is no dispute that the Movant simply has not received any satisfaction or even one payment towards its equitable lien since established by the Ohio courts nearly five years ago. Absent payment, its interests are not adequately protected (11 U.S.C. § 362(d)(1)).

Section 362(d)(1) requires the court to provide adequate protection of a creditor’s property interest or grant relief from the automatic stay.

Bank of North Georgia v. Strick Chex Columbus Two, LLC (In re Strick Chex Columbus Two, LLC) · filed 2015-11-19(d)(1)

Though the Debt- or has not moved for authorization to use the cash collateral, the Court will still address the issue, as the Motion already requires the Court to ensure that all of the Bank’s interests in the Debtor’s property are adequately protected or grant the Bank relief from the automatic stay.

Section 362(d)(1) provides adequate protection against a decline in the value of an interest in estate property caused by the automatic stay; an unsecured creditor has no such interest to protect.

In re Sunedison, Inc. · filed 2017-01-18(d)(1)

Adequate protection must be provided to protect against the decline in value to a non-debtor’s interest in property of the estate resulting from the imposition of the automatic stay, 11 U.S.C. § 362(d)(1), the use, sale or lease of that property, 11 U.S..C. 363(e), or the granting of a priming lien on that property to secure post-petition financing. ... Unsecured creditors like CSI do not have an interest in property of the estate that merits adequate protection, and there is no express statutory requirement that unsecured creditors receive adequate protection.

Section 362(d)(1) does not require relief from the stay for a tax purchaser based on unpaid post-petition property taxes or missing property insurance when a sale-in-error remedy adequately protects its interest.

Gan B, LLC v. Sims · filed 2017-06-13(d)(1)

Because nothing in the case law, the Code, or the Illinois property tax code supports Gan’s argument, the Court perceives no legal error in the Bankruptcy Court’s determination that Gan is adequately protected despite Sims’s failure to pay post-petition real estate taxes or carry property insurance. Obtaining a sale-in-error declaration would give Gan the “indubitable equivalent” of its interest in the Property such that it is adequately protected under 11 U.S.C. § 361.

Section 362(d)(1) permits adequate protection payments when an equity cushion is too small to protect a secured creditor against depreciation in the collateral.

In re Southside Church of Christ of Jacksonville, Inc. · filed 2017-06-15(d)(1)

However, to the extent that an equity cushion exists, it is minimal and is not sufficient to protect against depreciation in the Property’s value. Accordingly, the Court will require the Church to commence making adequate protection payments to the Successor Trustee and will detail those requirements in a separate order.

Section 362(d)(1) does not allow relief from the automatic stay for lack of adequate protection when the movant has no legal property interest to protect.

Tann v. Pees (In re Boddie) · filed 2017-08-22(d)(1)

Tann has no legal property interest in the PNC Claim; therefore, he cannot assert the lack of adequate protection of a property interest as a reason to lift the automatic stay.

Section 362(d)(1) permits stay relief when a debtor’s use of collateral erodes a secured creditor’s interest and the debtor offers no specific plan for adequate protection.

In re Bailey · filed 2017-10-03(d)(1)

First, he has not stated what the value is of the IRS’s collateral and he has not provided the IRS with a specific plan to adequately protect it. ... That proposal may indeed work at some time in the future but the current state of affairs—Mr. Bailey receives the monthly payments from his pension and social security benefits and he uses them for his expenses and to fund his plan—erodes the IRS’s collateral. ... The IRS’s motion for relief from stay ' pursuant to § 362(d)(1) is granted.

Section 362(d)(1) allows an equity cushion alone to provide adequate protection to a secured creditor and support denial of relief from the automatic stay.

Chintan Singh · filed 2025-08-11(d)(1)

Standing alone, a determination that an equity cushion exists to adequately protect the secured party can be sufficient to provide adequate protection under Section 362(d)(1).

An equity cushion can provide a secured creditor adequate protection under § 362(d).

Hooper v. Citizens & Southern Equity Mortgage Co. (In re Hooper) · filed 1981-10-15(d)

... and that the Company is adequately protected, 11 U.S.C. § 362(d), by an equity cushion.

A debtor’s equity in property can adequately protect a secured creditor’s interest and support keeping the automatic stay in place for a limited time.

Southtrust Bank v. Commerce Center, Inc. (In re Commerce Center, Inc.) · filed 1983-02-18(d)(1)

The plaintiff’s interest in the debtor’s interest in said real property is adequately protected by such equity and the related circumstances for the present and at least for the next sixty days.

Section 362(d)(1) permits relief from the stay when federal mortgage insurance alone does not adequately protect a secured creditor whose payments have stopped.

Commonwealth School Employees' Retirement Fund v. Heath (Heath) · filed 1981-02-19(d)(1)

The Court can envision circumstances where the sixty (60%) percent mortgage guarantee, when coupled with other factors, may constitute adequate protection, but standing alone, it is not the “indubitable equivalence” of the creditors bargain.

Section 362(d)(1) permits relief from the automatic stay for lack of adequate protection, and a seven percent equity cushion will rarely provide sufficient protection.

Springfield Institution for Savings v. LeMay (In Re LeMay) · filed 1982-03-29(d)(1)

Applying the analysis set out in that case to the facts of the instant case, I must quickly conclude that the automatic stay should be terminated for cause, including lack of adequate protection. A seven percent equity cushion will rarely provide sufficient protection because a key component of the ratio, the fair market value figure, is only the Court’s best estimate and, as an estimate, requires a margin for error.

Section 362(d)(1) does not require an equity cushion to provide adequate protection from the automatic stay.

Bankers Life Insurance v. Alyucan Interstate Corp. (In Re Alyucan Interstate Corp.) · filed 1981-07-16(d)(1)

This case raises the question whether an “equity cushion” is necessary to provide adequate protection under 11 U.S.C. Section 362(d)(1). ... This Court concludes that it is not.

Section 362(d)(2) applies in Chapter 13 proceedings, so property may be tested for whether it is necessary for an effective reorganization.

In Re Scott · filed 1990-12-03(d)(2)

As a result, the term “necessary for an effective organization” utilized under § 362(d)(2) is applicable in a Chapter 13 proceeding.

In a Chapter 7 liquidation, § 362(d)(2)(B) does not apply, and lack of equity warrants relief from the stay absent a reasonable likelihood of prevailing at a final hearing.

Bank of Middlesex v. Parkinson (In Re Ballard) · filed 1980-08-04(d)(2)

The present case filed in this Court is a Chapter 7 liquidation and the provisions of subsection (d)(2)(B) are inapplicable. If the debtor has no equity in the property, the court shall under subsection (d)(2)(A) grant relief unless the court finds a reasonable likelihood that the party opposing relief from such stay would prevail at a final hearing [362(e)(1)].

Section 362 permits a court to modify the automatic stay after a case is converted from Chapter 13 to Chapter 7.

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

Therefore, this court is empowered to modify the automatic stay in cases converted from Chapter 13 to 7.

Relief from the automatic stay may be denied when the creditor is provided for in a confirmed Chapter 13 plan.

Groves v. Household Finance Co. · filed 1981-03-10

FURTHER ORDERED that the Defendant, Household Finance Company, is granted relief from the stay provisions of Sec. 362 in the Groves Case, 80 Me 1736, and it is ... FURTHER ORDERED that the Defendant, CIT Financial Services, Inc., be and the same is hereby denied relief from stay in the Archuleta Case, 80 Me 1502, since it is provided for in the Chapter 13 Plan confirmed by this Court.

Section 362(d)(2) counts payments held by a Chapter 13 trustee toward the debtor’s equity in collateral when the secured creditor is entitled to those funds.

Bank of New Jersey v. Johnson (In re Johnson) · filed 1981-04-27(d)(2)

We disagree, and conclude that, in determining the debtor’s equity in the automobile herein, the payments made to the standing trustee should be credited to the debtor’s liability to the Bank. The Bank need not be in actual possession of those funds but need only be entitled to them to have them affect its secured claim. ... Therefore, the Bank is not entitled to relief from the automatic stay pursuant to § 362(d)(2).

Section 362(d)(2) applies to Chapter 13 cases.

Standard Mortgage Corp. v. Stewart (In Re Stewart) · filed 1981-05-19(d)(2)

Since § 362(d) is found in Chapter 3 of title 11, and is not within any exception provided by § 1161, the clear language of § 103 indicates that § 362(d)(2) does apply in cases under Chapter 13.

Section 362(d)(2) applies in Chapter 13 cases and independently permits relief from the automatic stay.

General Motors Acceptance Corp. v. Miller (In Re Miller) · filed 1981-07-23(d)(2)

The clear trend and only reasonable conclusion is that Section 362(d) in its entirety applies to Chapter 13 Plans and provides the method by which the Court shall determine whether relief from the automatic stay provided by Section 362(a) shall be granted. ... Under the authorities cited, Section 362(d)(1) and Section 362(d)(2) each provide an alternative basis for obtaining relief from the automatic stay imposed by 11 U.S.C., Section 362.

When a creditor seeks relief from the automatic stay in a second Chapter 13 case filed soon after a dismissed case in which the creditor obtained stay relief, the debtor must show changed conditions and financial resources since the prior stay order.

Southern Federal Savings & Loan Ass'n v. McFarland (In Re McFarland) · filed 1982-01-21(a)

Therefore, where a creditor files a complaint for relief from the effects of a second automatic stay in a second Chapter 13 Case filed in close proximity to a prior dismissed Chapter 13 Case in which that creditor had been granted relief from the prior stay, the debtor has the burden to show a change of conditions and financial resources which have occurred since the prior hearing and Order terminating the stay.

Section 362(d)(2) applies in Chapter 13 proceedings when a creditor seeks relief from the automatic stay.

Dale Funding Corp. v. Garner (In Re Garner) · filed 1982-02-19(d)(2)

We conclude that the Bankruptcy Court erred in failing to apply section 362(d)(2) to this Chapter 13 proceeding.

After confirmation of a Chapter 13 plan, a § 362 complaint is generally not the proper way to attack the plan to obtain relief from the automatic stay.

Los Angeles Title & Trust Deed Co. v. Risser (In Re Risser) · filed 1982-09-02(d)(1)

However, once the plan is confirmed a § 362 complaint is not, in most cases, the proper procedural vehicle for attacking the plan.

Section 362(d)(2) applies to Chapter 13 cases, and lack of equity alone does not justify relief from the stay unless the property is also unnecessary to an effective reorganization.

Citicorp Homeowners, Inc. v. Willey (In Re Willey) · filed 1982-10-29(d)(2)

However, it is the opinion of this court that 11 U.S.C. 362(d)(2) is applicable to Chapter 13 cases. ... However, a finding of no equity in the property is insufficient, standing alone, to allow the court to grant relief from the automatic stay—the property must also be unnecessary to an effective reorganization.

Section 362(d)(2) relief from the stay is defeated when a confirmed Chapter 13 plan provides for curing the secured obligation’s default.

Anaheim Savings & Loan Ass'n v. Evans (In Re Evans) · filed 1982-09-17(d)(2)

Where a confirmed plan provides the means to cure a default on a secured obligation § 1327(a) must be read literally to defeat a § 362(d)(2) complaint.

A prior order granting relief from the automatic stay bars a debtor from reasserting defenses available in the earlier stay proceeding when circumstances have not materially changed, but changed circumstances may permit the debtor to invoke a new stay.

Cashman Investment Corp. v. Robinson (In Re Bradley) · filed 1984-03-07

I believe the debtor/defendant in a stay action should be precluded from raising in.a subsequent action any defense that he could have raised in a prior action. On this basis, I grant relief from the stay. On the other hand, I think the debtor ought ordinarily be free to invoke the stay in a new case when his circumstances have changed.

Section 362(d) does not authorize a bankruptcy court to rule that relief from the automatic stay in a pending case will bar the stay in future bankruptcy proceedings.

In Re Norris · filed 1984-03-28(d)

In my view, a bankruptcy judge in a pending proceeding simply does not have the power to determine that the automatic stay shall not be available in subsequent bankruptcy proceedings.

After confirmation of a Chapter 13 plan, relief from the automatic stay for cause under § 362(d)(1) must rest on events occurring after confirmation.

In Re Clark · filed 1984-04-27(d)(1)

After confirmation “cause” under § 362(d)(1) may only be predicated on matters occurring after said confirmation.

Section 362(d)(2) applies in Chapter 13 cases, and a home that the debtor’s plan is designed to save may be necessary to effective reorganization.

Grundy National Bank v. Stiltner · filed 1986-02-28(d)(2)

Since the clear weight of authority is that § 362(d)(2) is applicable in Chapter 13 cases, the court is of the opinion that the bankrutpcy court erred in not directly considering whether the Bank had proven its case for relief from the stay under the two-part test of § 362(d)(2). The bankruptcy court has nevertheless reached the correct determination in this case where the debtors’ home is the primary asset sought to be saved in their Chapter 13 plan of rehabilitation.

Section 362(a) does not impose a new automatic stay on foreclosure in a later bankruptcy involving the same debtor, creditor, and property when the stay was lifted to permit foreclosure in an earlier bankruptcy.

Jefferson v. Mississippi Gulf Coast YMCA Inc. (In Re Jefferson) · filed 1986-04-07(a)

The question presented here is whether § 362(a) is triggered, thus invoking the imposition of the automatic stay upon a foreclosure, where an order pursuant to § 362(d) was entered lifting the stay and allowing a foreclosure proceeding to commence in a previous bankruptcy involving the same debtor, the same creditor and the same property. This Court holds that § 362 does not apply under those circumstances, as in the present case.

Section 362(a)(5) and (6) do not stay foreclosure of a lien granted under a confirmed Chapter 13 plan to enforce payment obligations after post-confirmation defaults.

In Re Nicholson · filed 1987-02-19(a)(5), (a)(6)

The foreclosure of the lien, under these circumstances, does not constitute an act by the creditor to enforce against property of the debtor a lien securing a claim that arose before the commencement of the Chapter 13 case, nor does it constitute an act to collect a pre-petition claim from the debtor within the meaning of 11 U.S.C. § 362(a)(5) and (6).

The automatic stay continues to protect Chapter 13 estate property after plan confirmation, even when that property revests in the debtor.

Riddle v. Aneiro (In Re Aneiro) · filed 1987-04-15(a)

Instead, the revested property remains property of the estate subject to the terms of the order of confirmation and all the protections of § 362(a).

Section 362(d)(2) does not provide a ground for relief from the automatic stay in Chapter 13 cases.

Lomas Mortgage USA v. Fischer (In Re Fischer) · filed 1992-02-04(d)(2)

The standard of review is not relevant since, as it explained below, this Court concludes that the reference in § 362(d)(2) to "reorganization,” and the policies of Chapter 13, preclude the application of that ground for relief from the stay in Chapter 13.

In a Chapter 7 case, equity in property does not require denial of relief from the automatic stay when the trustee does not object; the trustee’s nonobjection supplies cause to grant relief despite the debtor’s objection.

In Re Cohen · filed 1992-06-01(d)(1), (d)(2)(A)

For these reasons, the Court concludes that despite the presence of equity in this property for the estate, § 362(d)(2)(A) does not, where the Trustee has not objected, require denial of FNMA’s motion for relief. Rather, where the Trustee has not objected to the motion for relief, I conclude that there exists “cause” under 11 U.S.C. § 362(d)(1) (“the court shall grant relief from the stay ... for cause”) to grant relief from stay, the Debtors’ objection notwithstanding.

In Chapter 7 cases, § 362(d)(2)(B) does not require proof that the property is unnecessary to an effective reorganization before relief from the automatic stay is granted.

Rocket City Federal Credit Union v. Kennemer (In Re Kennemer) · filed 1992-07-03(d)(2)(B)

The appellant correctly asserts that in Chapter 7 cases, courts abandon the requirement of 11 U.S.C. § 362(d)(2)(B), as the debtor’s legal reorganization is not at issue.

Section 362(d)(2) applies in Chapter 13 cases and permits relief from the stay when the debtor has no equity in property that is unnecessary for an effective reorganization.

In Re Walters · filed 1995-09-20(d)(2)

This Court agrees with the latter cases. Chapter 3 of the Code, which includes subsection 362(d)(2)(B), is clearly incorporated for use within Chapter 13 cases pursuant to 11 U.S.C. § 103(a).

Under § 362(d)(1) and (2), a Chapter 13 debtor’s failure to fund preconfirmation trustee payments does not justify stay relief for a creditor that has not obtained the right to receive those payments.

In Re Herrin · filed 2005-04-28(d)(1), (d)(2)

Because payments to Aames are to be made through the Trustee and the Trustee cannot disburse to creditors until plan confirmation, there is no issue under 11 U.S.C. § 362(d)(1) for “cause” generally before the Court until the creditor requests pre-confirmation distribution, obtains an order granting it, and the order is then not complied with: the debtor’s failure to pay the Trustee sufficient funds to allow for the Court-ordered pre-confirmation distribution then would give rise to “cause” to grant stay relief. ... Finally, because Aames has not obtained the right to receive pre-confir-mation payments from the Trustee, Aames cannot state a claim for relief under section 362(d)(2).

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

In Re Lord · filed 2005-05-24(d)(1)

Citifinancial has demonstrated cause for relief from the automatic stay, based upon the undisputed allegation that Lord is not making post-petition mortgage payments.

Section 362(d)(2) permits relief from the stay when the debtor has no equity in the property, and the effective-reorganization condition is moot in a Chapter 7 liquidation.

In re Russell · filed 2017-02-27(d)(2)

Stay relief is also appropriate under 11 U.S.C. § 362(d)(2). Section 362(d)(2) provides for the granting of relief from the stay if “(A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization.” The Court has already concluded that Debtor has no equity in the Property and the issue of whether the Property is necessary to an effective reorganization is moot, because a reorganization is not contemplated in a Chapter 7 liquidation.

Section 362(a)(4) stays actions to enforce liens on pledged special revenues; Section 922(d) permits application of those revenues but does not exempt lien enforcement actions from the stay.

Assured Guaranty Corp. v. Fin. Oversight & Mgmt. Bd. for Puerto Rico (In Re Fin. Oversight & Mgmt. Bd. for Puerto Rico) · filed 2019-03-26(a)(4)

Nothing in the statute's plain language, however, addresses actions to enforce liens on special revenues, which are specifically stayed by Section 362(a)(4) of the Bankruptcy Code, or allows for the compelling of debtors, or third parties holding special revenues, to apply special revenues to outstanding obligations.

Section 362(a)(4) bars a creditor from enforcing a lien against estate property when stay relief granted to another creditor has not abandoned the estate’s interest.

Clower v. Jardin (In Re Clower) · filed 2011-08-29(a)(4)

As the Court has determined that the order granting Wachovia relief from the automatic stay did not abandon the estate’s interest in the Property, the Court must also find that the continuation of the Defendant’s attempt to enforce its lien on the Property constituted a violation of section 362(a)(4).

Section 362(a)(4) stays an action to enforce a previously perfected medical lien when state law imposes a deadline to sue on that lien.

In Re Miller · filed 2011-02-17(a)(4)

Because § 18-46-106(a) is a limitations statute and deals with the enforcement of a lien, 11 U.S.C. § 362(b)(3) and § 546(b) do not apply. Rather, the action of enforcement is stayed pursuant to § 362(a)(4).

Section 362(b)(3) excepts acts to perfect an interest in property from the automatic stay when the trustee’s avoidance powers are subject to § 546(b).

In Re C.G. Chartier Construction, Inc. · filed 1991-01-14(b)(3)

However, under 11 U.S.C. § 362(b)(3), the filing of a petition in bankruptcy does not operate as a stay of any act to perfect an interest in property to the extent that the trustee’s avoidance powers are subject to 11 U.S.C. § 546(b).

Section 362(a)(4) prohibits creating a lien against estate property after a bankruptcy petition is filed, even if the creditor never tries to enforce the lien.

DaShiell v. Ohio Citizens Bank (In Re DaShiell) · filed 1991-01-04(a)(4)

By their conduct, Ohio Citizens took action to create a lien on the real estate belonging to the estate and therefore violated the automatic stay. Whether Ohio Citizens took steps to enforce their lien is not relevant.

Section 362(a) prohibits a creditor from filing a financing statement after the bankruptcy petition or repossessing the debtor’s collateral during the automatic stay.

Rushville National Bank v. Wells Fargo Bank (In Re Dupont Feed Mill Corp.) · filed 1990-12-03(a)

Rushville’s actions in filing its financing statement with the Secretary of State’s office and repossessing the collateral was a violation of the automatic stay authorized by the Bankruptcy Code. 11 U.S.C. § 362(a).

Section 362(a)(4) makes a county’s postpetition payment and filing to create and perfect a lien against estate property null as violations of the automatic stay.

Claussen v. Brookings County (In Re Claussen) · filed 1990-09-26(a)(4)

The County’s post-petition acts of lien creation via payment and filing the lien are null as automatic stay violations.

Section 362(b)(3) permits a mortgagee to bring an adversary proceeding to establish its entitlement to perfect an interest in future rents despite the automatic stay.

In Re 1301 Connecticut Avenue Associates · filed 1990-09-10(b)(3)

Because a determination that a mortgagee is entitled to the appointment of a receiver would be, in effect, a declaratory judgment, the mortgagee ought to file an adversary proceeding to obtain such a determination. Bankruptcy Rule 7001. The automatic stay does not bar such a suit by virtue of 11 U.S.C. § 362(b)(3).

Section 362 automatically stays creditors from filing liens against a debtor’s property after a bankruptcy petition is filed.

In re Posada · filed 1990-08-31(a)

When a bankruptcy petition is filed, 11 U.S.C. § 362 provides that a “stay” goes into effect automatically, preventing creditors from taking any action against a debt- or. This includes filing liens against a debtor’s property after bankruptcy has been filed.

Section 362(b)(3) excepts filings with retroactive effect from the automatic stay, including a filing made within four months after collateral is moved to another state.

General Electric Company, Lighting Business Group v. Halmar Distributors, Inc. (In Re Halmar Distributors, Inc.) · filed 1990-07-10(b)(3)

There is an express exception to the automatic stay for filings having a retroactive effect, which would include a filing within four months under § 9-103(1)(d).

Section 362(a)(3) prohibits a professional holding estate funds from taking them as compensation without a court order.

In Re McDonald Bros. Construction, Inc. · filed 1990-06-11(a)(3)

Moreover, if a professional in possession of estate funds takes the funds as compensation without a court order, that professional would violate the automatic stay.

Section 362(a)(4) bars recording a mortgage against estate property after the bankruptcy petition is filed, and a recording in violation of the stay is void.

In Re Thompson · filed 1990-05-29(a)(4)

Causing the mortgage to be recorded violated the automatic stay of 11 U.S.C. § 362(a)(4) and was, therefore, a void act.

Section 362(a)(4) voids liens recorded against estate property after the bankruptcy petition is filed in violation of the automatic stay.

In Re Wlodarski · filed 1990-06-07(a)(4)

4. Lien numbers 2, 3 and 10 are void because they were recorded after the filing of the involuntary petition in violation of 11 U.S.C. § 362(a)(4).

Section 362(a)(1), (3), and (6) stays litigation seeking pension plan funding and interest payments from the debtor and control over estate assets.

Eastern Air Lines, Inc. v. Rolleston (In Re Ionosphere Clubs, Inc.) · filed 1990-03-14(a)(1), (a)(3), (a)(6)

In accordance with the foregoing, pursuant to § 362(a)(1), (3) and (6) of the Code, this Court finds that the relief requested regarding the pension plan funding issue and Count II of the Rolleston Lawsuit violates the automatic stay.

Section 362(a)(3) stays an attempt to terminate a license agreement after the bankruptcy filing when termination would take rights under the agreement from the estate; an unauthorized termination notice has no effect.

R. S. Pinellas Motel Partnership v. Ramada Inns, Inc. (In Re R. S. Pinellas Motel Partnership) · filed 1979-12-28(a)(3)

Having concluded that the notice of termination of the License Agreement did not ... become effective until after the commencement of the reorganization case; this Court is satisfied that the Notice of Termination was an act designed to obtain possession of “property” from the estate, an act within the reach of the automatic stay of the Code, Sec. 362(1)(3); 11 U.S.C. § 362(1)(3), and that it has no force and effect, since it was not authorized by the Court.

Section 362(a) stays actions against the debtor and estate property, but does not protect guarantors of the debtor’s loan.

In Re Larmar Estates, Inc. · filed 1980-07-25(a)

The automatic stay provisions of section 362(a) do not protect the guarantors of a loan that was made to the debtors.

Section 362(a) does not stay a junior lienor from filing a notice of intent to redeem property after a foreclosure sale when the notice does not affect the estate’s redemption right or the debtor’s rights.

Columbine P & S Fund, Inc. v. Hellenschmidt (In Re Hellenschmidt) · filed 1980-09-10(a)

The conclusion is inescapable that the filing of a notice of intent to redeem by a junior lienor is not stayed by § 362(a).

Section 362(a) does not stay a postpetition state court order that is directed neither against the debtor nor against the debtor’s property.

Krupp, Meyers & Hoffman v. Doyle (In Re Laird) · filed 1980-09-29(a)

We find that, although the order of Judge Smillie was entered after the debtor filed his petition for relief under the Code, ... that order was not a violation of the automatic stay because it was not directed against the debtor or against the property of the debtor.

Section 362(a)(3) stays cancellation of a debtor’s paid fire insurance policy because the policy is property of the estate.

Holland America Insurance v. Sportservice, Inc. (In Re Cahokia Downs, Inc.) · filed 1980-06-25(a)(3)

The cancellation of the insurance would certainly come within the provisions of the automatic stay under § 362(a)(3).

Section 362(a)(3) stays delivery of a foreclosure deed and acceptance of the purchase price after a bankruptcy filing when the debtor retains an interest in the property.

In Re Wheeler · filed 1980-08-11(a)(3)

Therefore, the actions of United in delivering the deed to Mr. Newkirk and accepting the check for $35,000 in payment for the property were acts “to obtain property from the estate” in violation of the automatic stay.

Section 362(a)(3) bars seizure of property in the debtor’s possession or control after bankruptcy, regardless of who owns it.

In Re Adana Mortgage Bankers, Inc. · filed 1980-08-14(a)(3)

Title or ownership of property is not controlling to a Section 362(a)(3) violation. Possession or control by the debtor is sufficient to enact the protection of the automatic stay.

Section 362’s automatic stay of proceedings against a bankrupt partnership does not extend to suits against individual partners or their property merely because those suits may impair the partnership’s reorganization.

Aboussie Bros. Construction Co. v. United Missouri Bank of Kirkwood (In Re Aboussie Bros. Construction Co.) · filed 1981-01-27

This Court sees no reason why the distinct existence of the partnership and its partners should be disregarded in the instant context. This Court may stay suits against the Debtor’s property, not that of the individual partners of the Debtor.

Section 362(a)(4) and (5) prohibit a municipality from enforcing a tax lien after a bankruptcy filing by publishing a notice of the lien sale and sending it to a mortgagee.

In Re Eisenberg · filed 1980-12-10(a)(4), (a)(5)

It is clear that by causing the notice of the sale of the tax lien to be published and sending a copy thereof to Westside Federal, Respondents performed an act to enforce its tax lien subsequent to the filing of the debtors’ Chapter 13 petitions in violation of 11 U.S.C. section 362(a)(4) and (5).

Section 362(a) suspends the running of a mortgage foreclosure redemption period until the stay is lifted or dissolved.

Moratzka v. Lanesboro State Bank (In Re Johnson) · filed 1981-01-14(a)

The automatic stay provided by 11 U.S.C. § 362(a) operates to suspend or toll the running of the redemption period in a mortgage foreclosure until such time as the stay is lifted or dissolved.

Section 362(a) does not stay acts against property that belongs to neither the debtor nor the bankruptcy estate.

Administrator of Veterans' Affairs v. Sparkman (In Re Sparkman) · filed 1981-03-02(a)

Section 362(a) of the Code provides for an automatic stay of all proceedings or acts against the debtor, the debtor’s property or property of the estate. It does not stay acts against property which is neither the debtor’s nor the estate’s. Therefore, the stay did not operate to prohibit the act of the sheriff in recording the deed.

Section 362(a) does not automatically toll a statutory redemption period following a foreclosure sale; Section 108 governs the time available to redeem.

Bank of the Commonwealth v. Bevan · filed 1981-02-09(a)

A joint reading of § 108 and § 362(a) leads this court to conclude that the automatic stay provisions of § 362(a) do not override the extension of time provisions in § 108 controlling the period of time a trustee has to redeem the debtor’s property.

Section 362(a) does not stay actions against a contractor-license surety bond because the bond is outside the bankruptcy estate.

Fintel v. Oregon (In Re Fintel) · filed 1981-03-03(a)

11 U.S.C. § 362(a) does not stay actions against property which is not a part of the estate. A corporate surety bond which is provided by a debtor in order to obtain a contractor’s license from the State is not property of the estate.

Section 362(a)(3) stays acts to obtain property that the debtor controlled or possessed, even when legal title is held by someone else.

Quick Catering Co. v. General Motors Acceptance Corp. (In Re Quick Catering Co.) · filed 1981-04-07(a)(3)

The legislative history of Section 362 indicates that property from the estate is property over which the estate has control or possession.

Section 362(b)(4) does not except state grain warehouse insolvency proceedings aimed primarily at protecting pecuniary interests and controlling property under bankruptcy court jurisdiction from the automatic stay.

In re State of Missouri · filed 1981-04-08(b)(4)

Missouri's laws, by governing the operation and liquidation of grain warehouses, directly conflict with the control of the property by the bankruptcy court and, therefore, do not fall within the section 362(b)(4) exception.

Section 362(b)(4) does not except a state proceeding to operate and liquidate insolvent grain warehouses from the automatic stay when it primarily protects pecuniary interests and conflicts with the bankruptcy court’s control of the property.

Missouri v. U. S. Bankruptcy Court for E. D. of Arkansas · filed 1981-04-08(b)(4)

We conclude that Missouri’s grain laws, although regulatory in nature, primarily relate to the protection of the pecuniary interest in the debtors’ property and not to matters of public safety and health. Missouri’s laws, by governing the operation and liquidation of grain warehouses, directly conflict with the control of the property by the bankruptcy court and, therefore, do not fall within the section 362(b)(4) exception.

Section 362’s automatic stay may be modified to permit a proceeding against the debtor concerning specified property while remaining in effect for all other purposes.

Kimrey v. Dorsett (In Re Kimrey) · filed 1981-04-17

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the stay afforded by 11 U.S.C. § 362 be, and hereby is, modified to permit a party of interest to commence a proceeding against the debtor that is substantially related to the proceeds of the certificate of deposit in question. For all other purposes the automatic stay of 11 U.S.C. § 362 is in full force and effect.

Section 362(a)(5) prohibits postpetition filing of a financing statement to perfect a lien against the debtor’s property; a filing that violates the stay is a nullity and must be removed from the public record.

Cash Register Systems, Inc. v. Munsey Corp. (In Re Munsey Corp.) · filed 1981-05-08(a)(5)

There can be no question that the act of filing the financing statement was an act to perfect a lien against property of the debt- or, and thus a violation of the automatic stay. Since we conclude that the filing of the financing statement is a nullity, we cannot allow CRS to benefit from the continued presence of that document in the public record. Thus, we direct CRS to remove the financing statement from the public record forthwith.

Section 362(a)(3) prevents a party from losing a property right that existed when an action began if the proceeding barred its exercise until the right expired.

Dixon v. Kelley (In Re Producers Energy Corp.) · filed 1981-06-11(a)(3)

A party cannot be denied a right which existed at the commencement of an action where the power to exercise it was barred by the proceeding [11 U.S.C. § 362(a)(3)] and by its terms expired while the action was pending.

Section 362(b)(3) does not except an attempt to evict a debtor from the automatic stay as an act to perfect an interest in property.

Gibbs v. Housing Authority of New Haven (In Re Gibbs) · filed 1981-06-29(b)(3)

The Authority asks that the court include a finding that the Authority has claimed that § 362(b)(3) excepts its attempt to evict Gibbs from the automatic stay because said attempt was an act to perfect an interest in property. The court finds that the Authority made such a claim, but rules that said section has no application to this proceeding.

Section 362(a) does not toll the running of a state-law mortgage redemption period after a prepetition foreclosure sale.

Ecklund & Swedlund Development Corp. v. Hennepin Federal Savings & Loan Ass'n (In Re Ecklund & Swedlund Development Corp · filed 1981-07-28(a)

I conclude that Section 362(a) did not operate to stop the running of time provided by the Minnesota statute, that the time provided for extension by Section 108 in the circumstances of this case is the end of the provided one year period long since passed and the debtor not having taken effective action either to effect a redemption, or to seek in proper fashion after notice and hearing the aid of this Court as a court of equity to obtain if warranted an extension of such time is now foreclosed.

Section 362(a)(5) continues to stay actions against a debtor’s property after the trustee abandons it.

Bennett v. Commercial Credit Plan (In Re Bennett) · filed 1981-08-13(a)(5)

While abandonment causes the interest of the estate in property to pass back .to the debtor, the Bankruptcy Court still has jurisdiction over the property of the debtor under 28 U.S.C. Sec. 1471(e), and actions against the property of the debtor are still stayed under 11 U.S.C. Section 362(a)(5).

Section 362(a)(5) protects a debtor’s interest in abandoned collateral until discharge, so a secured creditor’s repossession before discharge violates the automatic stay.

Estes v. Eaton National Bank (In Re Estes) · filed 1981-08-18(a)(5)

Thus, despite the trustee’s earlier act of abandonment, defendant’s act of repossession prior to discharge violated the automatic stay of 11 U.S.C. § 362(a)(5).

Section 362(a)(4) does not stay a foreclosure purchaser’s request for a deed after the debtor’s redemption period expires when the request does not enforce a lien against property of the estate.

Jenkins v. Peet (In Re Jenkins) · filed 1981-08-20(a)(4)

The act of the mortgagee in seeking a deed upon expiration of the period of redemption does not seem to this Court to be the type of enforcement of lien rights prohibited under § 362. That section is designed to preserve the estate’s rights in property.

Section 362(a)(3)-(5) does not stay a foreclosure action that joins a debtor in possession to resolve its postpetition mechanics’ lien on another party’s property when the action does not seek estate property or enforce a prepetition claim.

In Re Le Peck Construction Corp. · filed 1981-09-24(a)(3)-(5)

The automatic stay imposed on actions by 11 U.S.C. § 362 is inapplicable. No one of its subdivisions covers the present proceeding. Lincoln is not seeking to obtain “possession of property of the estate” (subd. 3), “to create, perfect or enforce any lien against property of the estate” (subd. 4), nor to enforce a lien securing “a claim that arose before the commencement” of Le Peck’s Chapter 11 proceeding (subd. 5).

Section 362 does not prohibit a creditor from responding to a debtor’s notice of rescission by taking steps to release its security interest.

Smith v. American Finance System of Georgia, Inc. (In Re Smith) · filed 1981-10-13

This court believes that the Defendant’s argument that the automatic stay prohibited it from responding to the notice of rescission is without merit. The stay prohibits actions to collect debts. 11 U.S.C. § 362. ... The court thus concludes that the stay did not prohibit the Defendant from responding to the letter of rescission, and to this extent Defendant’s motion for summary judgment should be denied.

Section 362 permits postponement notices that specify a new foreclosure sale date when they merely maintain the status quo.

First National Bank of Anchorage & Alaska Title Guaranty Co. v. Roach · filed 1981-09-30

Postponement notices which specify a new sale date do not violate 11 U.S.C. § 362.

Section 362(a)(4) stays the creation and perfection of new liens against partnership property upon the partnership’s bankruptcy filing without requiring notice to creditors.

Don/Mark Partnership v. Nutter (In Re Don/Mark Partnership) · filed 1981-10-08(a)(4)

The bankruptcy code does not, however, require any notice before the creation and perfection of new liens will be stayed. Its automatic-stay provision supersedes any state law to the contrary.

Abandonment of property by the trustee does not automatically terminate the automatic stay against actions concerning the debtor’s property.

Zuria v. Brown (In Re Tummillo) · filed 1981-10-19(a)(5)

GMAC was apparently of the opinion that an abandonment automatically terminated the section 362 stay. In this regard, however, they are mistaken.

Abandonment of property does not end the automatic stay protecting the debtor’s property; the stay continues until the case is closed, dismissed, or discharge is entered, whichever comes first.

In Re Horton · filed 1981-10-21(c)(1)

Creditors would read 11 U.S.C. § 362(c)(1) to mean that an abandonment lifts the stay, but it clearly does not say that. A debtor’s property is protected by the automatic stay which remains in effect until the case is closed, dismissed or the discharge. entered, whichever comes first.

Section 362(a)(5) continues to protect a debtor’s interest in property after the estate abandons its interest, and repossession of that property violates the stay.

In Re Tyler · filed 1981-11-17(a)(5)

Therefore, since the debtors herein still retained an interest in the van after the order of abandonment, we conclude that the automatic stay provisions of § 362(a) still protected the debtors’ interest and the actions of the bank in repossessing the van were a violation of that stay.

Section 362(c)(1) does not terminate the automatic stay protecting property that leaves the bankruptcy estate through exemption and goes to the debtor.

Waldrop v. Phillos (In Re Phillos) · filed 1981-10-23(c)(1)

The debtor’s exemption of his interest in the entireties property removes that interest from the bankruptcy estate, but not from the protection of the § 362 automatic stay. The termination of automatic stay provided for in § 362(c)(1) does not terminate the stay against property of the debtor if the property leaves the estate and goes to the debtor.

Section 362(a) stays a tax sale to collect a prepetition tax debt, and a sale that violates the stay is void from the outset regardless of notice of the bankruptcy.

Young v. Critton (In Re Young) · filed 1981-10-27(a)

The sale of debtors’ real property for the nonpayment of delinquent taxes is the exact type of creditor action § 362(a) stays. ... The stay created by § 362(a) is an automatic statutory stay and acts taken in violation of the stay are void ab initio regardless of notice.

Section 362(a) stays a foreclosure undertaken to collect a debtor’s debt when the debtor has a possessory right in the property, even if someone else holds record title.

In Re Barksdale · filed 1981-11-13(a)

Hence, the foreclosure, although the record owner of the property was not the Debtors, nevertheless, the Debtors had a possessory right to the property and the debt sought to be satisfied was, in fact, a debt of the Debtors as contemplated by the foregoing provisions of 11 U.S.C. § 362. The stay, therefore, became effective upon the filing of the petition on October 19, 1981, prohibiting the acts complained of by the Debtors.

Section 362 does not require stay relief to proceed against funds in which neither the debtor nor the trustee has an assertable property interest.

Wilson v. Chicago Title Insurance (In re D. Jay Hyman Construction Co.) · filed 1981-11-30

If the Debtor has an interest that was transferred to the Trustee, or if the Trustee has an assertable interest, then lifting of the stay would be improper, and if neither the Debtor nor the Trustee has any assertable property interest in these funds, then lifting of the stay is unnecessary because under 11 U.S.C. § 362 the stay applies only to property of the estate as defined in 11 U.S.C. § 541.

Section 362 requires a creditor that learns it repossessed a debtor’s property in violation of the automatic stay to return the property and restore the status quo.

Wariner v. First State Bank of Livingston (In Re Wariner) · filed 1981-12-03(a)(5)

A creditor has an affirmative duty to return the property and restore the status quo once it learns its actions violated the stay.

Section 362(a) makes postpetition recordation of an instrument claiming an interest in the debtor’s property null and void as to the debtor and trustee.

Benoit v. Reeves (In Re Reeves) · filed 1982-02-08(a)

Since this court has found the instrument executed between Mr. Reeves and Mr. Barnett was recorded after the debtors filed their petition under Chapter 13 of the Bankruptcy Code, this court now finds the recordation is null and void as to the debtors as well as the trustee. 11 U.S.C. § 362 governs the operation of the automatic stay.

Relief from the automatic stay under § 362(d)(1) does not determine lien validity or priority or invalidate a trustee’s lien after conversion to Chapter 7.

Miami Valley Production Credit Ass'n v. Sheehan (In re Sheehan) · filed 1982-02-23(d)(1)

In conclusion, therefore, the question of validity and priority of liens is justiciable because the order for relief from the stay in the Chapter 11 case does not invalidate the Trustee’s lien in the subsequent Chapter 7 case after conversion.

The automatic stay may prevent postpetition payment on a statutory lien, but it does not avoid the lien and may be annulled.

Small v. County of Hennepin · filed 1982-03-15(a)

Finally, the automatic stay may prevent enforcement of the lien, technically preventing payment by the commissioner of revenue to the county under the state act or by Internal Revenue Service to the state under the new federal act, if such payment has not been made before the bankruptcy case was commenced. But obviously the stay does not avoid the lien, the stay may as here be annulled or terminated, and payment of the lien is not preferential.

Section 362(a)(4) bars postpetition perfection of a lien against funds in which the debtor has an equitable interest, including perfection by filing a stop notice.

Harry Brainum, Jr., Inc. v. Shore Air Conditioning & Refrigeration, Inc. (In Re Shore Air Conditioning & Refrigeration, · filed 1982-03-26(a)(4)

The filing of Petition under Chapter 11 of the Bankruptcy Code by the debtor-in-possession was the triggering event which caused the automatic stay of Bankruptcy Code § 362(a)(4) to become effective. By its terms, this statute stayed any action to perfect any lien against property of the estate, which plaintiff attempted to do by filing its stop notice. Thus, plaintiff’s stop notice was in violation of the automatic stay and invalid.

Section 362(b)(3) exempts postpetition perfection of a mechanic’s lien from the automatic stay when applicable relation-back law makes perfection effective against the trustee.

Matter of Fiorillo & Co. · filed 1982-04-05(b)(3)

However, Code § 362(b)(3) makes an exception for postpetition filing “to the extent that the trustee’s rights and powers are subject to such perfection under section 546(b) of this title.” ... Accordingly, the plaintiff is permitted to file its mechanic’s lien as provided by the applicable New York Mechanics’ Lien Law, but is not authorized to take any further enforcement action.

Section 362(a)(4) bars postpetition recordation of a mortgage to perfect a lien against estate property, and a recordation in violation of the stay is a nullity.

Funket v. Beacon Consumer Discount Co. (In Re Funket) · filed 1982-04-21(a)(4)

Consequently, the defendant’s recordation of the mortgage on January 10, 1980, was a violation of § 362(a)(4) and was thus a nullity even prior to the defendant’s subsequent removal of that recordation.

Section 362(a)(5) stays the creation of a lien on a debtor’s exempt property to secure a claim that arose before bankruptcy.

Bailey v. Bailey (In Re Bailey) · filed 1982-06-14(a)(5)

Because Mr. Hansen’s actions in state court created a lien against the debtor’s exempt homestead, which is no longer part of the estate, they constituted a violation of the stay of 11 U.S.C. § 362(a)(5).

Section 362 permits a joint creditor to obtain relief from the automatic stay to secure a lien on real estate held by a Chapter 13 debtor and a nonfiling spouse as tenants by the entirety.

Stern Shoe Repair Co. v. Menefee (In re Menefee) · filed 1982-08-13(d)

Accordingly, for the reasons stated above, the Court grants Stern relief from the automatic stay of Section 362 to enable it to obtain a lien on real estate held by the debtor and his wife as tenants by the entirety.

The automatic stay requires a seller seeking to reclaim goods from a debtor to invoke bankruptcy court jurisdiction through an adversarial proceeding.

Action Industries, Inc. v. Dixie Enterprises, Inc. (In Re Dixie Enterprises, Inc.) · filed 1982-08-31

Section 546 must and can be invoked only by adversarial process in the bankruptcy court because of the automatic stay of 11 U.S.C. § 362.

Section 362(a)(4), together with § 546(b), leaves a creditor with a previously perfected lien no obligation to take further action to preserve that lien after a bankruptcy petition is filed.

Union Bank & Trust Co. v. McDonald (In re Daniels) · filed 1982-09-02(a)(4)

And once the bankruptcy petition was filed the plaintiff had no obligation to take action. Read 11 U.S.C. § 362(a)(4) and 11 U.S.C. § 546(b).

Section 362 does not prohibit the continued existence of a prepetition lis pendens that merely gives notice of a creditor’s claim and neither creates nor enforces a lien.

Hart v. United Virginia Bank (In Re Hart) · filed 1982-11-26

The memorandum of lis pendens neither creates nor enforces any lien but, as stated above, serves merely as notice that a creditor is asserting a claim to the property. Thus, the simple existence of the lis pendens, without more, does not and cannot violate Section 362.

Section 362(a) does not bar enforcement of a stock purchase agreement between private parties when the sale of the debtor corporation’s stock does not substantially affect or interfere with estate or debtor property.

In re American Athlete Co. · filed 1983-01-04(a)

In light of the above authority we hold that § 362(a) does not bar the enforcement of the terms of the stock purchase agreement.

Section 362(a) does not require a seller to obtain relief from the automatic stay before exercising a right to stop goods in transit to an insolvent debtor.

National Sugar Refining Co. v. C. Czarnikow, Inc. (In Re National Sugar Refining Co.) · filed 1983-01-28(a)

We are of the opinion, however, that Czarnikow was not required under Code § 362(a) to seek relief from the stay prior to exercising its right of stoppage.

Section 362(b)(3) excepts postpetition perfection from the automatic stay only when the creditor’s underlying interest was created before the petition.

In Re New England Carpet Co., Inc. · filed 1983-01-28(b)(3)

It is through the comparison of subsection (a), paragraph (4) and subsection (b), paragraph (3) of Section 362 of the Code, that the Court concludes that a creditor’s underlying interest must be created prior to the petition, and that the interest need only be perfected after the petition date, so as to be excepted from the automatic stay.