What is the Automatic Stay?
As soon as you file for bankruptcy, there is an automatic injunction as a matter of law. This is known as the automatic stay. Practically speaking, this means creditors can no longer contact you or otherwise attempt to collect on their debts after you filed bankruptcy. If they continue to contact you after you file your bankruptcy petition, there can be substantial penalties. There are, however, exceptions for certain creditors and in certain unique circumstances where the automatic stay may not apply.
Does the Automatic Stay Apply?
In general, in order for the automatic stay to apply, all you need to do is commence the case. Usually, as soon as a debtor files for bankruptcy protection voluntarily, the automatic stay immediately is in place. Speak with a bankruptcy attorney if you’d like to discuss the specific aspects of your case and whether anything may jeopardize the application of the stay. The automatic stay is established by §362 of the bankruptcy code.
What Does the Automatic Stay Do?
Once you file for bankruptcy and the automatic stay is imposed, any activity to collect from a debtor or enforce or pursue claims against a debtor are prohibited if they take place outside the bankruptcy proceeding. No one can “use up” any of the debtor’s property outside of the bankruptcy. The automatic stay is said to be a great equalizer in that all the creditors have to go through the bankruptcy court to enforce or collect on debts. No one can gain an advantage by proceeding outside the bankruptcy court once the stay is in place. Bear in mind that it is possible for certain creditors to obtain relief from the stay in certain cases. Also, keep in mind that creditors can still continue with proceedings in the bankruptcy court itself. Once the automatic stay is in place, the following actions by a creditor are prohibited
Who is Bound by the Automatic Stay?
The short answer is everyone. This includes entities as the word is defined in 101(15) of the bankruptcy code. Included in this definition is individuals, all of the various types of corporate entities and even instrumentalities of the government in certain cases. Even if the entity had no notice of the stay, they are still barred from proceeding.
What Actions are Not Included in the Stay?
There are quire a few exclusions from the bankruptcy stay included in 362(b). We’re not going to get into all of them but by far, the most common include:
What Happens if the Stay is Violated?
First and foremost, any legal rights or advantages are nullified if they were gained in violation of the automatic stay. If it can be established that the violation was deliberate, there could be attorneys fees, punitive damages or sanctions. This is on top of any actual loss that can be shown by the debtor. It is even possible in some courts for the debtor to obtain damages resulting from emotional distress for violations of the stay.
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Chris Sawan is both a licensed attorney and a CPA which allows him to provide exceptional service to bankruptcy clients in Toledo, Ohio.
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This is an ATTORNEY ADVERTISEMENT. Sawan PLLC is a law firm with attorneys licensed in Michigan, Ohio and Florida. We assist clients filing bankruptcy. If you are considering bankruptcy, please call our offices. No attorney-client relationship is created by your use of this website. The information contained on this website is provided for general purposes only and does not apply to your specific factual circumstances in all cases. For us to better understand the particular facts unique to your case, call 419-469-5002 for a free consultation.
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