By Andrew Jackson Edited by Mazyar M. Hedayat, Esq.
In this post we will skim the surface of how the Automatic Stay, put into effect via Section 362 if Title 11 of the United States Code, helps clear the air for people and companies that file Bankruptcy; allowing them to repay their creditors the best they can.
What Is the Automatic Stay?
Bankruptcy is the Federal process by which an individual, a couples, or a business entity is permitted to shed liabilities and obtain a fresh start. This process can take the form of a one time liquidation or a reorganization that unfolds over time. But all forms of Bankruptcy have one thing in common: the Automatic Stay provision of 11 USC 362. So what is the Stay? It is
a self-executing, universal injunction that goes into effect the moment a case is filed and keeps most creditors from exercising control over the assets of the Bankruptcy Estate.
Why An Automatic Stay?
To ensure that similarly-situated creditors get treated equitably in a Bankruptcy, Congress wrote the Bankruptcy Code to ensure that nobody could get the advantage. The Automatic Stay ensures that there is enough to go around, and that no single Creditor gets too much; even if what is left to distribute is only pennies on the Dollar. Under the Code, fairness equals equitable distribution.To ensure fairness, Section 362 makes it a punishable offense for most creditors to take actions such as:
- Filing or pursuing a lawsuit to collect
- Garnishing wages or issuing a citation
- Filing or foreclosing a mortgage or lien
- Demanding payment orally or in writing
What if the Stay is Violated?
Because the intent of Congress in creating the Automatic Stay was to usher in a quiet period during which the Bankruptcy Trustee could take stock of assets and liabilities without having to fight the Debtor's battles, penalties for violation of the Stay are harsh. Any breach of the peace, with or without the creditors' knowledge, is considered contempt of Court punishable by injunctive, monetary, and in proper circumstances punitive, damages.
This is worth repeating:creditors can be punished even if they did not know that they were violating the Automatic Stay. As long as the Stay is in effect - that is, a Bankruptcy case was filed - violation by a creditor is a civil offense. Note however; Congress considered some things too important even for the Automatic Stay. Thus, Criminal matters are not affected; nor are family law (i.e. Divorce) matters.
How is the Automatic Stay Put Into Effect?
Neither a Debtor, the Debtor's Lawyer, nor the Court needs to take any action to activate the Stay - it comes into existence by operation of law when the case is filed. How do creditors know? Every creditor listed in the Bankruptcy Petition is served notice by the Court Clerk.
What if My Creditors Say They Didn't Know?
All creditors identified in the Petition receive notice of the case from the Court Clerk, and all recipients are bound by the provisions of §362 whether or not they know they are violating it. You read that right: even if a creditor was unaware of the Stay when they violated it, they can nonetheless be punished by the Bankruptcy Court. In fact, the Automatic Stay is so powerful that it restrains not only creditors but the majority of Judges and Attorneys from exercising dominion or control over assets of the Bankruptcy Estate.
In practice, the Automatic Stay lasts for a relatively short time in the case of liquidation and much longer in the event of reorganization. In Chapter 7 the Automatic Stay protects all non-exempt property that can be administered by the Trustee for about 90 days (the length of most Chapter 7 cases). That is, until a discharge is issued, the Stay protects all items in the Bankruptcy Estate. In Chapter 11 and 13 the Stay remains in effect for as long as the Plan of Reorganization is active. In Chapter 13 that means a maximum of 5 years. In Chapter 11 that means a long as it takes to repay creditors according to the Plan approved by the Court and a majority of unsecured creditors.
Wrapping It All Up
After reading this article it should be evident that the Automatic Stay is a powerful tool. While we have discussed only a fraction of its ramifications here, you should now have a better understanding of this portion of the Bankruptcy Code.
Take advantage of your new appreciation for the law by contacting M.Hedayat & Associates to set up a free telephone or office consultation.
About the Author: Andrew Jackson writes for a number of financial communities, analyzing financial situations and offering advice. He also helps people manage budgets and financial plans.