What is the Automatic Stay and Who Does it Protect?

17 Feb What is the Automatic Stay and Who Does it Protect?

The Automatic Stay is an order entered by the federal bankruptcy court directing that all debt collection actions against a debtor that has filed for bankruptcy protection stop.  In most bankruptcies, the stay ordered is entered automatically by the court clerk when the case is filed.  There are some statutory exceptions that apply in the event of repeat filings.

The automatic stay is authorized by 11 USC §362, a section of the bankruptcy code that details its provisions.  This important statute prevents the taking of just about any type of action that improves or advances the position of a creditor after the case has been filed, including but not limited to:

  • The commencement or continuation of any judicial, administrative or other process against the debtor;
  • The enforcement of a judgment that was obtained before the bankruptcy was filed;
  • Any act to take possession or control of an asset of the debtor or the bankruptcy estate;
  • Any action to create, improve, complete or enforce any lien against an asset of the debtor or the bankruptcy estate; or,
  • The setoff of any debt owing to the debtor that arose before the bankruptcy case was filed.

The automatic stay is intended to provide time for the debtor to reorganize financial affairs or the bankruptcy trustee to liquidate assets in an orderly manner and distribute proceeds to creditors in order of priority.

The automatic stay will not stop criminal proceedings against the debtor.  It does not prevent the commencement or continuation of many domestic relations matters or other special proceedings such as:

  • An action to establish paternity;
  • An action to establish or modify an order for domestic support obligations;
  • A proceeding concerning child custody or visitation;
  • An action to dissolve a marriage (except for the division of property);
  • A proceeding regarding domestic violence;
  • Actions for the collection of domestic support obligations (when property of the estate is not involved);
  • The withholding of income for the payment of a domestic support obligation;
  • The withholding, suspension or restriction of a driver’s license, professional or occupational license, or recreational license under state law to enforce the payment of a domestic support obligation.

There are some other, less common exceptions that apply in specialized situations generally related to the police powers of the government to enforce laws or regulate commercial activity.

The 2005 bankruptcy code revisions contained some important new provisions that limit the power of the automatic stay.  In order to prevent repeated bankruptcy filings, when a bankruptcy case has been dismissed once within one year, the stay order only remains in effect to protect the debtor for a period of 30 days unless the court agrees to extend it.  If there have been two bankruptcy cases dismissed within one year, there is no automatic stay at all for the debtor.

The automatic stay is an important benefit accorded to a debtor in bankruptcy.  Because bankruptcy rules can be very technical, and a case can be dismissed for many reasons, the possible loss of the automatic stay makes it particularly important to get things right when the bankruptcy is filed.  This is a good reason to hire a competent bankruptcy lawyer to help you.

The automatic stay is a very powerful court order that gives the debtor a breather and stops creditors in their tracks.  It can stop a wage garnishment, a tax levy or the foreclosure sale of a home or other property.  It can even stop the collection efforts of the IRS or other tax collectors.  If the bankruptcy is properly filed, the automatic stay will give the debtor a second chance to keep their home and protect their income.

The bankruptcy stay does not last forever.  It can be removed by the court to allow a foreclosure to go forward or a car to be repossessed to protect the rights of a creditor.  However, when it is possible for the debtor to bring a defaulted home or car loan current, or when a financial reorganization is possible, the automatic stay can be an important ally for a debtor in bankruptcy.

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I was admitted to practice in 1978. I am certified as a Consumer Bankruptcy Specialist by the American Board of Certification. I regularly speak on tax and bankruptcy issues at state, regional and national conferences. Years of experience in practice before the Internal Revenue Service and Oregon Department of Revenue have given me the background to resolve a large variety of consumer tax issues.
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