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Relief From Stay
Filing bankruptcy automatically stays (stops) most actions against the debtor or the debtor’s property such as foreclosures, lawsuits or garnishments. 11 U.S.C. 362. The stay is designed to preserve the debtor’s property and to give the debtor a break from litigation. The stay is neither absolute nor permanent.
When Can A Creditor Get “Relief” From That Stay?
One seeking relief from the stay to go forward against the debtor or his property must show the bankruptcy judge, after a hearing, that there is “cause” for granting of relief (which might include showing that the creditor’s interest in particular property is not “adequately protected”), or show that the debtor has no equity in the property and that the property is not needed for a reorganization.
Most often, it is the secured creditor who wants relief from stay to foreclose on real estate or to repossess a car. Creditors can frequently get relief from the stay to foreclose on property in which the debtor has no equity or where the property is not insured. Where the equity cushion (the difference between the creditor’s claim and the value of the property) is small, the debtor may have to make “adequate protection payments” to the creditor to preserve the equity cushion for the creditor’s benefit as a condition of the stay remaining in effect.
Sometimes, creditors want relief from stay to pursue the debtor’s insurance coverage. Such relief is generally granted if the creditor agrees to limit the collection of his or her judgment to the insurance.
Another common situation is the multiparty case where the plaintiff does not want to try the case without the debtor being a party, which would be the result if the stay is not lifted. Judges vary on their approach to these cases: Some judges insist that the debtor be severed from the case and tried against the other defendants and others will grant relief, with some restrictions on the creditor’s rights against the debtor should the creditor get a judgment.
When relief from stay is granted, it does not remove the property from the estate or grant the creditor ownership of the property. It simply removes the stay and restores the parties to their state law rights and permits the creditor to enforce those rights to the extent that the relief from stay order permits. Thus, if a mortgage holder gets relief from stay, it doesn’t grant the creditor ownership of the collateral, it just frees the creditor to exercise whatever remedies the creditor had outside of bankruptcy.
To get relief from stay, you need a lawyer. The lawyer needs information about the claim against the debtor or the debtor’s property, information about the value of any collateral for the debt, and information about other liens or claims against the property. Relief from stay motions are generally heard on short notice (10-20 days), and the court may grant relief at the initial hearing or set an evidentiary hearing to make a final decision.
We encourage you to call 515-274-9161 or use our online contact form to schedule a free one-hour consultation with a lawyer who emphasizes on clear communication and cost-efficient solutions. We will review your situation and recommend an effective course of action.
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