Greatest Bankruptcy Weapon: The Automatic Stay

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Greatest Bankruptcy Weapon: The Automatic Stay - By: David Siegel, Posted on: 2007-09-06

The Debtor's Greatest Weapon, The Automatic Stay

Immediately when your bankruptcy case is filed, an automatic stay is created. An automatic stay is the equivalent of a restraining order that prevents creditors from taking certain collection actions against you. These collection actions include: Telephoning you at home, at work or on your cell phone; Filing lawsuits against you or continuing with lawsuits that are already in progress; Repossession attempts; Foreclosure proceedings; Wage or bank garnishments; Recording any liens or judgments; Anything that attempts to collect a debt or improve a creditor's position as it relates to you and your underlying debt.

The Automatic Stay Is Not Absolute

There are exceptions to the automatic stay, especially in the case of re-filings. Creditor actions are not stayed in the following circumstances: Criminal actions. Filing a bankruptcy case will not prevent Federal, State or local authorities from pursuing their criminal action against you. Lawsuits involving child support or spousal support are not stayed and can be pursued despite your bankruptcy filing. Actions by governmental units to enforce a police power are not stayed.

Recent Changes

There are many changes that have occurred in the area of automatic stays since bankruptcy reform generally went into effect October 17, 2005. The major changes have to do with repetitive bankruptcy filings. If you file a second bankruptcy case within one year of a prior filing, the automatic stay will only go into effect for thirty days, unless you can prove to the court that the second filing was filed in good faith. You must file a motion and have it heard before the Judge, prior to the expiration of the thirty day period. The motion can be brought against one particular creditor, or more likely, against all creditors. After notice and a hearing, the court will rule one way or another. You have the burden of proving that the second case was filed in good faith. This can be accomplished by showing a positive change in your circumstances such as higher, more stable income. Another example would be if you recovered from a serious medical condition which had previously prevented you from gainful employment. If you file a third bankruptcy case within one year of two prior filings, the automatic stay will not go into effect at all. You can attempt to invoke the automatic stay by bringing a motion, similar to the one mentioned above, showing that the third filing was made in good faith. Although not impossible, it would require a very compelling reason to convince the court to allow the stay to be imposed on a third filing within one year. In eviction cases, if the landlord has already obtained a judgment for possession prior to the bankruptcy case filing, then there is no automatic stay. You should file your bankruptcy case prior to the landlord obtaining a judgment so that the stay can go into effect. There is also no stay if the eviction is based upon endangerment of the rental property or an illegal use of controlled substances is occurring on the premises and the eviction started prior to the bankruptcy case being filed.

Article Source: http://higradesearch.com

David M. Siegel is the author of Chapter 7 Success: The Complete Guide to Surviving Personal Bankruptcy. He is a member of the American Bankruptcy Institute and currently practices bankruptcy law in Chicago and its surrounding suburbs. Additional information is available at www.bankruptcy-lawyers-dallas.com .

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