After the filing of a bankruptcy petition, the debtor needs protection from the collection efforts of its creditors. Therefore, the bankruptcy law provides that the filing of either a voluntary or involuntary petition operates as an automatic stay which prevents creditors from taking action against the debtor. This is similar to an injunction against the creditors of the debtor. The automatic stay ends when the bankruptcy case is closed or dismissed or when the debtor is granted a discharge. Anyone who willfully violates the stay in the case of an individual debtor can be liable for actual damages caused by the violation and sometimes liable for punitive damages.
Puerto Rico Motion to Extend Automatic Stay and Notice of Motion
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PROMESA's Title III follows roughly the U.S. bankruptcy law. Puerto Rico's creditors are separated into groups based on the different legal rights of their claims, such as the kind of bonds they own or other claims, such as pensions.
A borrower's pre-bankruptcy waiver of the automatic stay is more likely to be enforced if contained in a forbearance agreement or an agreement approved by the court in a previous bankruptcy case.
Creditors Obtaining Relief From the Automatic Stay -- If a creditor properly files and serves a Motion for Relief from the Automatic Stay, and a bankruptcy judge grants the Motion, the Automatic Stay will either be removed or modified so that the creditor can resume collection efforts against the debtor.
Before bankruptcy, the debtor does not have the capacity or authority to waive fundamental rights conferred by the Bankruptcy Code, including the protection of the automatic stay. This is because the prepetition debtor and the postpetition debtor are "separate and distinct" entities, with different rights and duties.
If a creditor ?willfully? violates the automatic stay and this violation injures an individual, the law requires the creditor to pay the individual actual damages, including costs and attorney fees, and may be required to pay punitive damages to punish this violation of the Bankruptcy Code. See 11 U.S.C. § 362(k).
The automatic stay is an order that goes into place when you file for bankruptcy and stops most collection efforts. But the stay isn't absolute, and a creditor can ask the bankruptcy court to lift the automatic stay and allow collection efforts to resume. If successful, the creditor can continue pursuing its debt.
The most sought exceptions are actions by parties to securities contracts to close out open positions; eviction of a debtor by a landlord where the lease has been fully terminated prior to the bankruptcy filing; actions by taxing authorities to conduct tax audits, issue deficiency notices, demand tax returns and make ...
Adequate protection is the concept that secured creditors deserve assurances that their interest in collateral is protected in bankruptcy from loss of value. Lack of adequate protection can be grounds for relief from the automatic stay.
