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.
South Dakota Motion to Extend Automatic Stay and Notice of Motion
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How to fill out Motion To Extend Automatic Stay And Notice Of Motion?
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A willful violation exists when a party knew of the automatic stay and the actions taken in violation of the stay were intentional.[3] The presence of intention is irrelevant, however, as only the actions taken must be intentional.[4]
Under Bankruptcy Code section 362(a), the "automatic stay" applies at the moment a bankruptcy petition is filed. This offers protection from creditors who must file a "Relief from Stay" motion to ask the judge to terminate the stay to take action against the debtor or debtor's property outside of the bankruptcy court.
Section 362(k)(1) provides that an individual injured by any willful violation of the automatic stay ?shall recover actual damages, including costs and attorneys' fees, and in appropriate circumstances, may recover punitive damages.?
The automatic stay remains in effect until your case is closed. But, of course, it isn't always that simple. For Chapter 7, it's often the case that a stay will last the 3-5 months the court case is open. For Chapter 13, bankruptcy cases could take anywhere from 3-5 years.
Generally, the stay automatically terminates on the earliest of: The case being closed or dismissed. The time a discharge is granted or denied.
Upon the filing of a bankruptcy, an injunction (called the ?Automatic Stay?) goes into effect which in most circumstances stops creditors from most collection actions. The stay arises by operation of law and requires no judicial action.
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 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 ...