
The Power of Bankruptcy's Automatic Stay
From the Nolo.com Debt & Bankruptcy Center
After you file, the law offers potent legal protection
against bill collectors.
When you file for bankruptcy, something called the automatic stay immediately
stops any lawsuit filed against you and virtually all actions against
your property by a creditor, collection agency or government entity. Especially
if you are at risk of being evicted or foreclosed on, being found in contempt
for failure to pay child support or losing such basic resources as utility
services, welfare or unemployment benefits, your driver's license or your
job (because of a raft of wage garnishments), the automatic stay may provide
a powerful reason for filing for bankruptcy.
Here is how the automatic stay affects some common emergencies:
Utility disconnections. If you're behind on a utility bill and
the company is threatening to disconnect your water, electric, gas or
telephone service, the automatic stay will prevent the disconnection for
at least 20 days. Bankruptcy will probably discharge the past due debts
for utility service. Although the amount of a utility bill itself rarely
justifies a bankruptcy filing, preventing electrical service cutoff in
January in New England might be justification enough.
Foreclosure. If your home mortgage is being foreclosed on, the
automatic stay temporarily stops the proceedings, but the creditor will
often be able to proceed with the foreclosure sooner or later. If you
are facing foreclosure, Chapter 13 bankruptcy is usually a better remedy
than Chapter 7 bankruptcy, if you want to keep your house.
Eviction. If you are being evicted from your home, the automatic
stay can usually buy you a few days or a few weeks. But if the landlord
asks the court to lift the stay and let the eviction proceed -- which
landlords usually do -- the court will probably agree, reasoning that
eviction won't affect the bankruptcy. Despite the attractiveness of even
a temporary delay, it is seldom a good idea to file for bankruptcy solely
because you're being evicted. You'll be better off looking for a new place
to live or fighting the eviction in state court, if you have a defense.
Public benefit overpayments. If you receive public benefits and
were overpaid, normally the agency is entitled to collect the overpayment
out of your future checks. The automatic stay prevents this collection;
furthermore, the debt (the overpayment you owe) is dischargeable unless
the agency convinces the court it resulted from fraud on your part. Whether
or not the threatened collection of an overpayment justifies bankruptcy
depends on how severely you'll be affected by the proposed reduction in
benefits.
Loss of driver's license because of liability for damages. In
some states, your driver's license may be suspended until you pay a court
judgment for damages resulting from an automobile accident. The automatic
stay can prevent this suspension if it hasn't already occurred. If you
are absolutely dependent on your ability to drive for your livelihood
and family support, keeping your driver's license can be a powerful reason
to file for bankruptcy.
Multiple wage garnishments. Although no more than 25% of your
wages may be taken to satisfy court judgments (up to 50% for child support
and alimony), many people file for bankruptcy if more than one wage garnishment
is threatened. For some people, any loss of income is devastating; also,
some employers get angry at the expense and hassle of facilitating a succession
of garnishments and take it out on their employees. Although federal law
prohibits you from being fired for one garnishment, an employer can fire
you for multiple garnishments. Filing for bankruptcy stops garnishments
dead in their tracks. Not only will you take home a full salary, but you
also may be able to discharge the debt in bankruptcy.
If the primary reason you are filing is to get the benefit of the automatic
stay, you don't need to file all of your papers at once; you can file
just the two-page petition and a mailing list of your creditors. If you
don't file the rest of your papers within 15 days, however, the case will
be dismissed.
Usually, the only way for a creditor to get around the automatic stay
is to ask the bankruptcy court to remove ("lift") it if it is
not serving its intended purpose. For example, say you file for bankruptcy
the day before your house is to be sold in foreclosure. You have no equity
in the house, can't pay your mortgage arrears and have no way of keeping
the property. The foreclosing creditor is apt to run to court soon after
you file to ask for permission to proceed with the foreclosure -- and
that permission is likely to be granted.
In a few instances, the automatic stay won't help you.
Certain Tax Proceedings. The automatic stay stops the IRS from
issuing a tax lien or seizing property. However, the IRS can audit you,
issue a tax deficiency notice, demand a tax return (which often leads
to an audit), issue a tax assessment or demand payment of such an assessment.
Support Actions. A lawsuit against you seeking to establish paternity
or to establish, modify or collect child support or alimony isn't stopped
by your filing for bankruptcy.
Administrative Freezes. If you file for bankruptcy owing money
on a bank loan, and you also have a checking account with that bank, the
automatic stay prohibits the bank from removing money from your checking
account to cover what's owed. The bank can, however, freeze money in the
checking account to cover the amount of your default -- at least until
the bankruptcy court determines what will happen to the debt. Freezing
money means that you have no access to it.
Criminal Proceedings. A criminal proceeding that can be broken
down into criminal and debt components will be divided, and the criminal
component is not affected by the automatic stay. For example, if you were
convicted of writing a bad check, sentenced to community service and ordered
to pay a fine, your obligation to do community service won't be stopped
by your filing for bankruptcy.
Evictions (California Only). A California law allows a landlord
who has sued for eviction and won a judgment for possession (but not a
money judgment for back rent) to let the marshal or sheriff evict even
if you file for bankruptcy.
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