Monthly Archives: October 2013

What is “Cause” to Lift the Automatic Stay in my Bankruptcy Case?

By Ryan C. Wood

There are many reasons people may want to file for bankruptcy: stopping a pending foreclosure, stopping a wage garnishment, stopping a lawsuit, or trying to get out from all their crushing debts to obtain a fresh start to name just a few. There are many more reasons than these as to why people file for bankruptcy. There is one powerful tool in the bankruptcy arsenal that accomplishes all of the actions named above: the automatic stay. The automatic stay is what stops a creditor from collecting from you, contacting you, continuing lawsuits or wage garnishments against you. The automatic stay freezes all collection activity against you as soon as your bankruptcy lawyer files your petition for bankruptcy relief. Obviously your creditors are not the biggest fan of the automatic stay if they are trying to collect from you. Their objective is to lift the automatic stay so they can continue their collection activity. How do they get the automatic stay lifted as to their debt?

Under 11 U.S.C. §362(d)(1) of the Bankruptcy Code, one of the ways in which a creditor can obtain a relief from stay order from the bankruptcy court is “for cause, including the lack of adequate protection of an interest in property…” What is considered “cause” for the judge to grant relief from stay to the creditor? It would be easier if Congress set out an exact definition on what is considered “cause” to lift the automatic stay, but since Congress did not do that, “cause” is determined on a case-by-case basis. See Delaney-Morin v. Day (In re Delaney-Morin), 304 B.R. 365, 369 (9th Cir. BAP 2003). Everything depends on the circumstances. The party seeking to preserve the automatic stay has the burden of proof. See Ellis v. Parr (In re Ellis), 60 B.R. 432, 435 (9th Cir. BAP 1985).

One of the circumstances that judges grant relief from stay for “cause” is the lack of proof of current insurance on the property. Proof of insurance is normally under the terms of a deed of trust. Failure to maintain insurance is cause to lift the automatic stay because it does not provide the creditor with adequate protection of its collateral. If anything happens to the property there would be a huge decline in property value and the creditor would lose its investment if no insurance is available to insure the property.

Another circumstance that judges lift the automatic stay for “cause” is lack of post-petition payments to the secured creditor. Your pre-petition arrears may be paid through a Chapter 13 bankruptcy plan your bankruptcy attorney drafts and files, but your post-petition payments need to be paid to your creditor once the bankruptcy case is filed. Lack of payment means that your creditor is not adequately protected against a default and they can have the stay lifted so they can continue with foreclosure proceedings to get the property back.

Most of the relief from stay actions are normally filed by secured creditors because they have an interest in the collateral (your car, your house, etc.). You do not have to worry about your unsecured creditors filing motions for relief from stay actions against you for your credit card debts or personal loans as these creditors do not have any cause to lift the automatic stay. One exception is your landlord. If you owe money to your landlord, your landlord may file a motion to lift the automatic stay against you to continue their unlawful detainer action if you are not paying rent to them. Another reason a motion to lift the automatic stay may be filed is to continue a lawsuit in another jurisdiction (for example, a state court) for actions not related to collection of debt. This could be filed by either you or your creditor.

If you have a motion for relief from stay action filed against you, it is highly advisable to seek the advice of an experienced attorney. Since the ability to obtain a relief from stay order from the judge is on a case-by-case basis, you should consult with a lawyer to see if your property may be in jeopardy.

What are Adequate Protection Payments and When are Adequate Payments Required?

By Ryan C. Wood

Adequate protection payments are paid to a secured creditor prior to the confirmation of a Chapter 13 plan or Chapter 11 plan or reorganization. As the name implies, the payment is to adequately protect the secured creditor’s interest your collateral. The most common adequate protection payments are made to creditors that use your car as collateral. There is a period of time between the filing of your Chapter 13 bankruptcy case to the confirmation or approval of your plan that the loan holder still needs to be paid. This period of time could last anywhere from two months to a year or more depending on your case. Your bankruptcy lawyer will be able to explain why there is delay in confirmation/approval or when confirmation/approval is anticipated. You are still driving your car during this period of time and therefore your car is depreciating in value. The adequate protection payments are to protect your secured creditor’s interest in the collateral during the time between when you first filed your Chapter 13 bankruptcy case to the confirmation of your plan. Once your Chapter 13 plan is confirmed your creditor will be paid based on the Chapter 13 plan filed.

Another use of the adequate protection payments are when you are behind on post-petition mortgage payments. Your Chapter 13 plan should pay back of your pre-petition mortgage arrears. You are responsible for making your regular monthly mortgage payments going forward. If you are behind on the post-petition mortgage payments your lender may file a motion to lift the automatic stay so they can proceed with foreclosure procedures on your house. Your bankruptcy lawyer should be able to set up some sort of payment plan with your mortgage lender and negotiate an adequate protection payment that is satisfactory to both parties. Your mortgage lender may then file an Adequate Protection Order with the court. This is an order signed by the court that provides the payment agreement you entered into with the mortgage lender. Failure to abide by the terms of the order may mean that your mortgage lender may continue with foreclosure proceedings.

Pursuant to 11 U.S.C. §1326, an adequate protection payment will need to be paid within 30 days of the filing of the bankruptcy petition or an order for relief. The order of relief may be granted once the secured creditor files a motion to lift the automatic stay so they can proceed to repossess a vehicle or foreclose on a home as indicated in the paragraph above. To avoid this result the person filing for bankruptcy would need to provide some sort of protection to the secured creditor in the form of payment for the asset.

How do you pay this adequate protection payment? You make the adequate protection payment to the Chapter 13 trustee as part of your Chapter 13 plan or directly to the creditor depending on your case. If you make the payment to the trustee, the trustee will then make the proper disbursements based on the plan filed with the court. Before the secured creditor could get any funds from the trustee they must first file a proof of claim with the court first. If a proof of claim is not filed they will not receive any of the disbursements. Your bankruptcy attorney should view the proof of claim for accuracy. Whether the trustee distributes the payments to the creditor before the plan is confirmed or after depends on the jurisdiction in which you filed your case. Some jurisdictions allow the payments to go to the secured creditor before the plan is confirmed, some jurisdictions allow the payments to go to the secured creditor if there is a direct order to that effect, and some jurisdictions make the secured creditor wait until the plan is confirmed before they receive their payments.

Does Filing Bankruptcy Stop My Pending Lawsuit Against Another Entity?

By Ryan C. Wood

People file bankruptcy to stop all collection activity against them, including lawsuits filed by creditors in an attempt to recover funds from the borrowers. That is the power of the automatic stay. What about if the person filing for bankruptcy has filed a lawsuit (or intends to file a lawsuit soon) against another person or entity? What happens to this lawsuit? Can the bankruptcy filer continue with this lawsuit? The short answer is yes, but you need to notify the bankruptcy court that you are currently in a lawsuit or you have the right to sue someone in a lawsuit. You must list the pending lawsuit in your bankruptcy schedules (Schedule B to list the potential asset in your bankruptcy case and Statement of Financial Affairs to indicate that you are currently involved in a lawsuit).

What happens if you do not list the pending lawsuit in your bankruptcy petition? First you should inform your bankruptcy lawyer about the lawsuit. If the lawsuit was not listed in your bankruptcy petition and you have received a discharge of your debts, the general rule is that you are stopped from continuing on with the lawsuit. This is the principle of “judicial estoppel.” You are stopped from continuing with the lawsuit because your bankruptcy petition indicated you do not have any claims against anyone and you do not have the right to sue anyone at the time your bankruptcy petition was filed. If you did have any rights you would have listed them as a potential asset in your case. You cannot say that you do not have any claims in your case and proceed to discharge all your debts and then try to go after someone in court to receive money.

In the Supreme Court case New Hanpshire v. Maine, 532 U.S. 742 (2001), judicial estoppel bars the continuing lawsuit if: (1) the positions are clearly inconsistent; (2) the bankruptcy filer and plaintiff in the lawsuit succeeded in getting the first court to accept the first position; and (3) the bankruptcy-filer and plaintiff in the lawsuit obtained an unfair advantage. The Supreme Court indicated that “it may be appropriate to resist application of judicial estoppel when a party’s position was based on inadvertence or mistake.” New Hampshire v. Main, 532 U.S. 742, 753. The 9th Circuit Appellate Court applied that rule in their case Quin v. County of Kauai Department of Transportation, No. 10-16000 (9th Cir, July 24, 2013). In Quin, the bankruptcy filer did not originally list her discrimination lawsuit in her bankruptcy petition. She received her discharge and was continuing with the discrimination lawsuit when her lawyer for the discrimination suit realized she filed for bankruptcy. Her lawyer then reopened her bankruptcy case to list the lawsuit in her schedules. She indicated she did not list the lawsuit as an asset because she misunderstood what she was required to do. The Quin court indicated that there was factual support for a conclusion of either mistake and inadvertence and remanded to lower courts to determine whether the omission of the lawsuit was mistaken or inadvertent.

If you are involved in a lawsuit against another party you need to be sure to notify your bankruptcy attorney so they can help you list the lawsuit in your schedules. Failure to do so may result in your lawsuit being stopped in its tracks and the person or company you are suing would be able to walk away.