The Automatic Stay in Bankruptcy: Knowing its Limits

Bankruptcy offers a number of protections for people facing overwhelming debt. One of the most important is the automatic stay that takes effect once you have filed. In general, it stops your creditors from taking action to collect debts and also halts lawsuits and most other legal proceedings against you. The stay remains in place until the conclusion of your bankruptcy case.

However, the automatic stay is not without its exceptions. The U.S. Bankruptcy Code provides that several types of legal proceedings are excluded from the stay, including:

• Family law matters — Legal actions to collect child support or spousal support can continue, which may include garnishment of your salary. Divorce, child custody, paternity and domestic violence cases also can go forward.
• Criminal cases — The bankruptcy stay doesn’t stop the government from exercising its police or regulatory powers. You can still be prosecuted for a crime and sentenced to pay fines and other monetary penalties if convicted.
• Tax administration — The state and the IRS can demand that you file tax returns and can audit your returns, assess taxes you owe and issue deficiency notices.
• Civil contempt sanctions — If you were sanctioned for contempt during litigation, the court can still collect penalties and court costs.
• Landlord rights — If a lease was fully terminated prior to the bankruptcy filing, a landlord can still pursue an eviction action to regain their property.

In some cases, a creditor can seek relief from the automatic stay. The creditor must file a written motion showing that there is good cause for lifting the stay with respect to the particular debt. If the court grants the motion, the creditor can move forward with collection efforts.

A judge will often lift the automatic stay with respect to collection of delinquent home mortgage or auto payments. Good cause may also be found when a debtor is not able to fund a Chapter 13 repayment plan or to maintain insurance.

To get the maximum protection you’re entitled to in your bankruptcy case, seek out an experienced attorney who can guide you through the process. Jeff Field & Associates helps clients in the Atlanta metropolitan area with filing Chapter 7 and Chapter 13 bankruptcies. We have offices in Athens, Douglasville, Gainesville, Lawrenceville, Marietta and Scottdale. To schedule an appointment, call 404-381-1278 or contact us online.