What you need to know ~
When you file for bankruptcy protection the automatic stay goes into effect immediately, “automatically”. The stay is the legal reason none of your creditors should continue to take steps to collect debt. The law is quoted below, so read it. If one of your creditors takes steps to collect after the stay is in place, you should be able to get mandatory damages from the bankruptcy court.
To get damages you need to file an Adversary Proceeding, which is free for debtors. You must do this in the bankruptcy court as soon as you are contacted in any way about debt covered by your bankruptcy. State courts can ignore the law, even though they are not supposed to, so go to your bankruptcy court immediately.
Whatever you do, don’t go through the state courts because if you appeal and the state court rules against you the bankruptcy court may say they can’t contradict the state court because of Rooker-Feldman, which is a doctrine developed to sustain state court decisions in a way that makes them off limits to federal courts, even if the state court has denied due process which should make the case void.
Evidence of stay violation
On April 5, 2009, I wanted to know how to produce evidence in a hearing regarding violation of the automatic stay. I found a bkforum which poses as a forum to help people who are facing bankruptcy, but it didn’t have a single topic devoted to the automatic stay. When I asked about the stay the main forum guy said it wasn’t important because violations are seldom prosecuted.
Well, Duh! If people don’t know about it, how are they going to prosecute violations? (In my experience the biggest violators were lawyers and mortgage lenders, so if the forum is run by lawyers I suppose it follows that they protect their own.)
I am getting so angry as I write this that it is hard not to break into a volley of swearing. But, I will forebear.
To have Automatic Stay protection today you need to have credit counseling prior to filing. So, do it! Credit counseling requirement. Read more
The Automatic Stay is provided by 11 U.S.C. § 362
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under or to recover a claim against the debtor that arose before the commencement of the case under this title;
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
(4) any act to create, perfect, or enforce any lien against property of the estate;
(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;
(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;
(7) the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor; and
(8) the commencement or continuation of a proceeding before the United States Tax Court concerning a tax liability of a debtor that is a corporation for a taxable period the bankruptcy court may determine or concerning the tax liability of a debtor who is an individual for a taxable period ending before the date of the order for relief under this title.
(b) The filing of a petition under section 301, 302, or 303 of this title, or of an application under section 5(a)(3) of the Securities Investor Protection Act of 1970, does not operate as a stay –
(1) under subsection (a) of this section, of the commencement or continuation of a criminal action or proceeding against the debtor;
(2) under subsection (a) –
(A) of the commencement or continuation of a civil action or proceeding –
(i) for the establishment of paternity;
(ii) for the establishment or modification of an order for domestic support obligations;
(iii) concerning child custody or visitation;
(iv) for the dissolution of a marriage, except to the extent that such proceeding seeks to determine the division of property that is property of the estate; or
(v) regarding domestic violence;
(B) of the collection of a domestic support obligation from property that is not property of the estate;
(C) with respect to the withholding of income that is property of the estate or property of the debtor for payment of a domestic support obligation under a judicial or administrative order or a statute;
(D) of the withholding, suspension, or restriction of a driver’s license, a professional or occupational license, or a recreational license, under State law, as specified in section 466(a)(16) of the Social Security Act;
(E) of the reporting of overdue support owed by a parent to any consumer reporting agency as specified in section 466(a)(7) of the Social Security Act;
(F) of the interception of a tax refund, as specified in sections 464 and 466(a)(3) of the Social Security Act or under an analogous State law; or
(G) of the enforcement of a medical obligation, as specified under title IV of the Social Security Act;
To have Automatic Stay protection under bankruptcy law you need to have completed debit counciling before filing.
I amassed a ream of evidence of stay violation. When I filed it I didn’t know the clerks were going to scan the exhibits into their system and throw away the originals that I filed.
The clerks scanned a third or less and paid little attention to the order that made the evidence coincide with my Motion for Summary Judgment. I did not know this, however.
I was devastated when Judge Jacobvitz ruled against me on the grounds that I had presented no evidence, and he published his opinion. I was so stunned I didn’t timely appeal or challenge. It wasn’t until later that I asked for a copy of what the clerks had filed. When I saw the mishmash I did a motion showing the problems and asking the Court to change its decision, which Judge Jacobvitz refused to do.
I write this to point out that judges tend to be friends with lawyers, or in the very least to be friendly toward them. The judge may act as if he cares about you and your case, but the fact may well be that if confronted with loss of evidence that would prove your case, the judge will side with the lawyer, even if some of the evidence proved that the lawyer lied.
That said, bankruptcy can be costly in terms of time, money, energy and health. Your nerves will take a beating if the judge prefers his long time working mate, the opposing lawyer, to the truth shown in your case. To avoid permanent nerve damage caused by stress, you should know something about vitamin B12 and how to tell if your levels are becoming dangerously low. Read how.
Automatic Stay Important to Debtors
What makes the Automatic Stay Important to Debtors in Bankruptcy is section k, Mandatory Damages:
(k) — this was previously (h)
(1) Except as provided in paragraph (2), an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.
(2) If such violation is based on an action taken by an entity in the good faith belief that subsection (h) applies to the debtor, the recovery under paragraph (1) of this subsection against such entity shall be limited to actual damages.
In order to prosecute for willful violation of the Automatic Stay I filed an Adversary Proceeding Complaint for Willful Violation of the Automatic Stay which stated which chapter I had filed under, the date of filing and the law:
4. This adversary proceeding for willful violation of the automatic stay in my Chapter 13, filed on March 21, 2005, under §301 of Title 11, is brought pursuant to U.S.C. Title 11, §362, which operates as a stay applicable to all entities, of— (I quoted (a) (1),(2),(3),(4),(5),(6),(7), and (8) above.)
In another numbered paragraph I quoted (k).
If you are able to go to a law library you will be able to use the appropriate Federal Practice Digest (dark blue covers) to look up Automatic Stay and circumstances similar to your own in order to identify what case law you want to cite.
Some Automatic Stay case law
Some case law I’ve used includes the following:
Fortier v. Dona Ana Plaza Partner, 747 F.2d 1324 (10th Cir. 1984), “The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy.”
Valley Transit Mix v. Miller, 928 F.2d 354 (10th Cir. 1991) the stay provisions are broad, they not only protect the property of the estate but also prohibit “any act to collect… or to recover a claim against the debtor…”
In re Calder, 907 F.2d 569, “Ordinarily, any action taken in violation of stay is void and without effect, even where there is no actual notice of existence of stay,”
Okay, so that gives you some idea of what I am complaining about in terms of the codified law and the case law supporting it.
In my case I was served an Amended Complaint (in the foreclosure of my condo) during the automatic stay, and I was served a magistrate court complaint by my tenants who had broken their lease and cost me a huge amount of money, and then wanted their deposits back. Because I failed to include my tenants in my list of creditors after I became aware of their demand, I lost that case.
But, basically, service of process is prohibited by the automatic stay.
In the case of my condo the plaintiff, Deutsche Bank National Trust Company, and its lawyer, proceeded with the foreclosure on the basis of the Amended Complaint served while I was in bankruptcy and the stay was in place. The stay “automatically” goes into effect when someone files bankruptcy.
The stay can be “lifted” if a creditor moves the bankruptcy court to lift it and the debtor doesn’t show a good reason not to lift it. It’s really important to Object to the motion within the time frame provided, which should be given to the debtor in the form of a Notice of Objection Deadline accompanying the Motion.
Okay, so about the stay itself.
I’ve been confined to my home, and often my bed, due to having had tetanus so I do a lot of research for my pleadings on the internet. I’m no longer well enough to go to the law library.
There are several sites which have been helpful, but perhaps the most helpful has been the 10th Circuit Bankruptcy Appellate Panel’s Filed Decisions. (Yes, I lost my original case and now, fall, 2011, I’m appealing.)
10th Circuit Bankruptcy Appellate Panel’s Filed Decisions ~ Read more.
10 Tips for Effective Brief Writing ~ Read more.
If you are in bankruptcy or are thinking about filing bankruptcy you owe it to yourself to read up on the automatic stay so that you can use it to protect yourself the way that it was meant to be used.
It really worries me that lawyers ignore violations caused by other lawyers. It should worry you, too. It’s just so corrupt.
My feeling is that the economic collapse could not have happened if courts were listening to people and taking their evidence seriously, rather than taking the word of lawyers — in my case Richard Leverick, the lawyer for Deutsche, lied. He lied in court and he won, even though I showed exactly where he lied, and provided proof that the lies were in fact falsehoods. What a creep. Excuse me for devolving into personal dislike for a lying creep.
It cost me several thousand dollars to fight for “mandatory damages” and in the end I did not get them. Judges can make up things to protect lawyers and not follow the actual law. Therefore, if you have a violation of stay claim, consider whether it is a case where the court will or will not favor a lawyer.
If you are up against a lawyer, then you might do well to consider the damage the long fight will do to your health.Your Nerves vs. Foreclosure ~ Read more.
Courts can be wily ~ think of Clarence Thomas who worked for Monsanto and now rules in their favor from the Supreme Court bench. Or Eric Holder who was a Wells Fargo lawyer before heading up the United States Department of Justice, where he does NOT bring cases against Wells Fargo or any of the other Big Banks for whom he worked while he was at Covington & Burling, a Washington law firm.You may be an ethical person and count on judges being ethical, but don’t hold your breath.
Automatic Stay Case Law Links
In re Scroggin Cite as 364 B.R. 772 (10th Cir.BAP 2007)
UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE TENTH CIRCUIT
With regard to § 362(h), this Court has previously held that “[a] ‘willful violation’ does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional.” Diviney v. Nationsbank of Tex., N.A. (In re Diviney), 225 B.R. 762, 774 (10th Cir. BAP 1998) (quoting Inslaw, Inc. v. United States (In re Inslaw, Inc.), 83 B.R. 89, 165 (Bankr. D.D.C. 1998). In this case, there is no doubt that the post-petition garnishment of Debtor’s wages was a violation of the automatic stay. It is not necessary to show a specific intent. It is uncontroverted that LAC was immediately notified of Debtor’s bankruptcy. Further, LAC’s refusal to take affirmative action to get the garnishment stopped cannot be seen as anything other than intentional conduct.
We must affirm the bankruptcy court’s finding that LAC’s conduct was willful unless we conclude the finding was clearly erroneous. Diviney, 225 B.R. at 774. Under the circumstances presented, the bankruptcy court’s finding is factually supported, and it was correct in concluding that Debtor was entitled to damages and attorney fees.
In addition to finding that LAC willfully violated the stay, the bankruptcy court found that the violation was egregious. Therefore, it awarded Debtor punitive damages. Our review of the bankruptcy court’s award of sanctions for a violation of the automatic stay is for abuse of discretion. Diviney, 225 B.R. at 769.
In re Johnson Cite as 501 F.3d 1163 (10th Cir. 2007)
It is particularly appropriate for bankruptcy courts to maintain jurisdiction over § 362(k)(1) proceedings because their purpose is not negated by dismissal of the underlying
bankruptcy case. They still serve (a) to compensate for losses that are not extinguished by the termination of the bankruptcy case and (b) to vindicate the authority of the
In re Soares 107 F.3d 969
1. The Nature of the Stay.
The automatic stay is among the most basic of debtor protections under bankruptcy law. See Midlantic Nat’l Bank v. New Jersey Dep’t of Envtl. Protection, 474 U.S. 494, 503 (1986); see also S. Rep. No. 95-989, at 54 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5840. It is intended to give the debtor breathing room by “stop[ping] all collection efforts, all harassment, and all foreclosure actions.” H.R. Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C. C.A.N. 5963, 6296-97; see also Holmes Transp. , 931 F.2d at 987; In re Smith Corset Shops, Inc. , 696 F.2d 971, 977 (1st Cir. 1982).
The stay springs into being immediately upon the filing of a bankruptcy petition: “[b]ecause the automatic stay is exactly what the name implies – ´automatic’ – it operates without the necessity for judicial intervention.” Sunshine Dev., Inc. v. FDIC, 33 F.3d 106, 113 (1st Cir. 1994). It remains in force until a federal court either disposes of the case, see 11 U.S.C. § 362(c)(2), or lifts the stay, see id. § 362(d)-(f). This respite enables debtors to resolve their debts in a more orderly fashion, see In re Siciliano, 13 F.3d 748, 750 (3d Cir. 1994), and at the same time safeguards their creditors by preventing “different creditors from bringing different proceedings in different courts, thereby setting in motion a free-for-all in which opposing interests maneuver to capture the lion’s share of the debtor’s assets.” Sunshine Dev., 33 F.3d at 114; see generally 3 Collier on Bankruptcy ¶ 362.03 (15th rev. ed. 1996).
In order to secure these important protections, courts must display a certain rigor in reacting to violations of the automatic stay. See Kalb v. Feuerstein, 308 U.S. 433, 438-39 (1940); Holmes Transp., 931 F.2d at 987-88; Smith Corset Shops, 696 F.2d at 976. The circuits are split on whether actions taken in derogation of the automatic stay are merely “voidable” or, more accurately, “void.” Some courts characterize unauthorized post-petition proceedings as “voidable.” See , e.g. , Jones v. Garcia ( In re Jones ), 63 F.3d 411, 412 & n.3 (5th Cir. 1995), cert. denied , 116 S. Ct. 1566 (1996); Bronson v. United States, 46 F.3d 1573, 1578-79 (Fed. Cir. 1995); Easley v. Pettibone Mich. Corp., 990 F.2d 905, 911 (6th Cir. 1993). Other courts – a majority, insofar as we can tell – call such actions “void,” but recognize that equitable considerations may alter some outcomes. See , e.g. , Siciliano, 13 F.3d at 751; In re Schwartz, 954 F.2d 569, 571 (9th Cir. 1992); Job v. Calder ( In re Calder ), 907 F.2d 953, 956 (10th Cir. 1990) (per curiam); 48th St. Steakhouse, Inc. v. Rockefeller Group, Inc. ( In re 48th St. Steakhouse, Inc. ), 835 F.2d 427, 431 (2d Cir. 1987), cert. denied , 485 U.S. 1035 (1989); Albany Partners Ltd. v. Westbrook ( In re Albany Partners, Ltd. ), 749 F.2d 670, 675 (11th Cir. 1984).
Our earlier opinions – which we today reaffirm – align us with the majority view. See Holmes Transp., 931 F.2d at 987-88; Smith Corset Shops , 696 F.2d at 976. This semantic difference has practical consequences because the characterization of an infringing action as “void” or “voidable” influences the burden of going forward. Treating an action taken in contravention of the automatic stay as void places the burden of validating the action after the fact squarely on the shoulders of the offending creditor. In contrast, treating an action taken in contravention of the automatic stay as voidable places the burden of challenging the action on the offended debtor. We think that the former paradigm, rather than the latter, best harmonizes with the nature of the automatic stay and the important purposes that it serves. See generally 3 Collier on Bankruptcy, supra , ¶ 362.11 & n.1 (observing that most courts hold violations void and terming this the betterview).
2. The Availability of Retroactive Relief.
While the automatic stay is significant, it is not an immutable article of faith. Indeed, the Bankruptcy Code, 11 U.S.C. § 362(d),
expressly authorizes courts to lift it in particular situations. Whether this statutory authorization encompasses retroactive relief is not entirely clear. We previously hinted that a court may set aside the automatic stay retroactively in an appropriate case. See Smith Corset Shops, 696 F.2d at 976-77. We now confirm Smith ‘s adumbration, holding that 11 U.S.C. § 362(d) permits bankruptcy courts to lift the automatic stay retroactively and thereby validate actions which otherwise would be void.
Section 362(d) confers upon courts discretionary power in certain circumstances to terminate, annul, modify, or place conditions upon the automatic stay. 
On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay . . ., such as by terminating, annulling, modifying, or conditioning such stay –
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest; . . . .
11 U.S.C. § 362(d). In drafting the law, Congress chose to include both the power to terminate the stay and the power to annul it. When construing this language, we must try to give independent meaning to each word. See United States Dep’t of Treasury v. Fabe, 508 U.S. 491, 504 n.6 (1993); United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir. 1985). The only plausible distinction between the two verbs in this context is that terminating the stay blunts it prospectively, from the moment the court’s order enters, whereas annulling the stay erases it retrospectively, as of some date prior to the entry of the court’s order (reaching as far back as the date when the debtor filed the bankruptcy petition, if the court so elects).
Seen from this perspective, Congress’ grant of a power of annulment is meaningful only if the court may thereby validate actions taken before the date on which the court rules. On any other construction, annulment lacks any independent significance; it merely replicates termination. It follows, therefore, that section 362(d) authorizes retroactive relief from the automatic stay. Accord Siciliano, 13 F.3d at 751; Albany Partners, 749 F.2d at 675; see also Franklin Sav. Ass’n v. Office of Thrift Supervision, 31 F.3d 1020, 1023 (10th Cir. 1994) (recognizing the authority to annul the stay and thereby grant retroactive relief); Sikes v. Global Marine, Inc., 881 F.2d 176, 178-79 (5th Cir. 1989) (same); see generally 3 Collier on Bankruptcy , supra , ¶ 362.11.
3. The Limiting Principle.
Recognizing the discretionary authority of bankruptcy courts to relieve creditors and other interested parties retroactively from the operation of the
automatic stay tells us nothing about the yardstick by which attempts to secure such relief should be measured. We turn next to this inquiry.
Once again, the overarching purpose of the automatic stay informs our analysis. Because the stay is a fundamental protection for all parties affected by the filing of a petition in bankruptcy, it should not be dismantled without good reason. See , e.g. , Little Creek Dev. Co. v. Commonwealth Mortgage Corp. ( In re Little Creek Dev. Co. ), 779 F.2d 1068, 1072 (5th Cir. 1986). Undoing the stay retroactively should require a measurably greater showing. Congress intended the stay to afford debtors breathing room and to assure creditors of equitable distribution. See H.R. Rep. No. 95-595, supra , at 340, 1978 U.S.C.C.A.N. at 6296-97. If retroactive relief becomes commonplace, creditors – anticipating post facto validation – will be tempted to pursue claims against bankrupts heedless of the stay, leaving debtors with no choice but to defend for fear that post-petition default judgments routinely may be resuscitated.
We believe that Congress created the automatic stay to ward off scenarios of this sort. Thus, if congressional intent is to be honored and the integrity of the automatic stay preserved, retroactive relief should be the long-odds exception, not the general rule. In our view, only a strict standard will ensure the accomplishment of these objectives. See Albany Partners, 749 F.2d at 675 (explaining that “the important congressional policy behind the automatic stay demands that courts be especially hesitant to validate acts committed during the pendency of the stay”). We conclude, therefore, that although courts possess a limited discretion to grant retroactive relief from the automatic stay, instances in which the exercise of that discretion is justified are likely to be few and far between.
We do not suggest that we can write a standard that lends itself to mechanical application. Each case is sui generis and must be judged accordingly. But, while it is not practical to anticipate and catalogue the varied circumstances in which retroactive relief from the automatic stay may be warranted, some examples may be helpful.
When a creditor inadvertently violates the automatic stay in ignorance of a pending bankruptcy, courts sometimes have afforded retroactive relief. See , e.g. , Jones, 63 F.3d at 412-13 (affirming retroactive validation of a foreclosure sale where the mortgagee had no notice of the bankruptcy filing); Mutual Benefit Life Ins. Co. v. Pinetree, Ltd. ( In re Pinetree, Ltd. ), 876 F.2d 34, 37 (5th Cir. 1989) (similar). By like token, debtors who act in bad faith may create situations that are ripe for retroactive relief. See , e.g. , Calder, 907 F.2d at 956; Easley, 990 F.2d at 911; Albany Partners, 749 F.2d at 675-76.
These examples – a creditor’s lack of notice or a debtor’s bad faith – clearly do not exhaust the possibilities. But they illustrate that a rarely dispensed remedy like retroactive relief from the automatic stay must rest on a set of facts that is both unusual and unusually compelling. The case law echoes this conclusion. See Mataya v. Kissinger ( In re Kissinger ), 72 F.3d 107, 109 (9th Cir. 1995) (stating that courts should indulge retroactive annulment only in extreme circumstances); In re Pulley, 196 B.R. 502, 504 (Bankr. W.D. Ark. 1996) (similar).
4. Applying the Standard.
Having constructed the limiting principle, we now consider whether the bankruptcy court erred in validating the foreclosure judgment which had been obtained in violation of the automatic stay. We conclude that no proper predicate existed for doing so and that the bankruptcy court therefore abused its discretion in ordering retroactive relief. See Anderson v. Beatrice Foods Co., 900 F.2d 388, 394 (1st Cir.) (equating abuse of discretion with a meaningful error in judgment), cert. denied , 498 U.S. 891 (1990).
Contrary to BCU’s importunings, it is the creditor’s knowledge, not the state court’s nescience, that is relevant to the question at hand. Bankruptcy law forbids creditors from continuing judicial proceedings against bankrupts, see 11 U.S.C. § 362(a) (1), and, accordingly, it is the creditor’s obligation to inform other courts of the situation, see In re Timbs, 178 B.R. 989, 991 (Bankr. E.D. Tenn. 1989) (collecting cases). Here, both BCU’s knowledge and its failure to act are undisputed; the debtor immediately notified BCU of the bankruptcy filing, but BCU kept quiet and permitted the superior court to proceed in ignorance of the stay. We are reluctant to reward creditors who, despite notice of a bankruptcy filing, fail for no discernible reason to notify courts in which they have initiated proceedings of the changed circumstances.
The other facts are no more conducive to the bestowal of retroactive relief. The creditor was represented by counsel throughout and does not claim that it misapprehended the effect of the filing. The bankruptcy court made no finding that Soares acted in bad faith, and, at any rate, the record does not contain any basis for such a finding. The procedural errors committed by both parties, such as BCU’s failure to serve Soares with the so-called clarification motion and Soares’ failure to lodge timely objections at various points in the proceedings, seemingly cancel each other out. And BCU’s entreaty that the equities favor retroactive relief rings unmistakably hollow; though BCU expended funds to clear title and maintain the property after foreclosing, this financial hardship is the natural consequence of its own failure to abide by the terms of the automatic stay. Thus, it is unredressable. See K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 916 (1st Cir. 1989) (declining to deny permanent injunctive relief which would require substantial demolition of an expensive structure where “appellant’s wound, deep as it appears, was self-inflicted”). In the last analysis, BCU is the author of its own misfortune.
Free TrialsTry Amazon Music Unlimited 30-Day Free Trial Join Amazon Prime Music - The Only Music Streaming Service with Free 2-day Shipping - 30-day Free Trial Try Amazon Prime 30-Day Free Trial Join Amazon Kindle Unlimited 30-Day Free Trial Amazon.com - Read eBooks using the FREE Kindle Reading App on Most Devices Try Audible and Get Two Free Audiobooks Join Amazon Channels Free Trial Join HBO Free Trial