Violation of the Stay: Motion or Adversary?

By Diana Bradford

When must an action for violation of the automatic stay be brought as an adversary proceeding and when is it okay to bring simply via a motion? There is no bright line rule.1 Prior to the 1984 legislation, there was no “private right of action” found in the Bankruptcy Code.2 Violations of the automatic stay, acting as an injunction, were brought as civil contempt actions under 28 U.S.C. § 1481.3 With the addition of 11 U.S.C. § 362 . . .

It looks like you are not signed in or registered! This content is only available to members.

Or Sign In Below:

No Author Biography has been linked to this Article.

Related Articles

March 15, 2020
By Jen Grondahl Lee, Jen Lee Law, Inc. (San Ramon, CA) When is a collected fee not a collected fee? When the statutes authorizing payment to the standing Chapter 13 trustee do not provide clear guidance on when that fee is paid and/or earned. The most recent case on this issue is In re Evans (Bankr. Idaho 2020).1 In a...
Members
Copy of Hildebrand-2016
February 20, 2022
Bankruptcy Court found violation of automatic stay to be “technical”, thus no damages. Ninth Circuit BAP did not agree. Continuing to pursue state court fraudulent transfer action after transfer or filed for Chapter 7 relief violated the automatic stay; even if the violation of the stay is “technical”, damages, including attorneys’ fees and costs, should be assessed against the violator....
Members
October 17, 2021
(Published with the consent of the Central District Consumer Bankruptcy Attorneys Assn Newsletter, October 2021) By M. Jonathan Hayes, Resnik Hayes Moradi LLP (Encino, CA) Question from old bankruptcy lawyer: Judge Jury, chapters 13s are such a huge amount of work. Do you have any pointers on avoiding common mistakes? Response from Judge Jury: Of course! I will focus on...
Members
June 9, 2019
By Nicholas Miller, Third-Year Student, University of Texas School of Law, and Madison Haueisen, Second-Year Student, University of Texas School of Law The second issue at hand in this year’s Duberstein moot court problem involves a matter of statutory interpretation—specifically, whether §503(b) of the Bankruptcy Code allows a creditor to recover costs and expenses incurred in making a substantial contribution...
Members
December 8, 2019
By Professor Nancy Rapoport Dear Readers: I know, I know—I’ve been absent from this column for a while,1 but I’ve found a set of cases that intrigued me, so here goes. In several cases, bankruptcy courts here in Nevada have made it clear that lawyers should do a better job of proving up their fees (and proofreading them), especially when...
Members
August 11, 2019
By John P. Gustafson, United States Bankruptcy Judge, Northern District of Ohio, Western Division Click here for Part 1 Click here for Part 2
Members
Academy Circle Logo Final
August 7, 2022
William F. Jaworski, Jr. - Bill - was appointed Chapter 13 Standing Trustee for the District of Delaware on April 1, 2022. Jaworski has very large shoes to fill as he is taking over for Michael Joseph upon his well-deserved retirement. Jaworski was born and raised in Buffalo, New York. As a hometown boy, he didn’t venture too far away...
Members
November 8, 2020
By James J. Robinson, Chief United States Bankruptcy Judge, Northern District of Alabama When do the trustee’s duties end, and who gets the money? Harris v. Viegelahn, 135 S. Ct. 1829 (2015). This opinion of the unanimous Court requires the trustee to return to the debtor undistributed plan payments—originating from wages earned postpetition—on hand at a good-faith, post-confirmation conversion rather...
Members
Copy of Hildebrand-2016
March 19, 2023
Below-median Chapter 13 debtor bears the burden of justifying a plan longer than three years as confirmation of a five-year plan would be denied as providing insufficient justification to exceed three years. (Robinson) In re Ingram, 2023 WL 2529730 (Bankr. N.D. Ala. March 15, 2023) Case Summary Danny Ingram filed four bankruptcy cases over 20 years. He was single with...
Members
October 11, 2020
By Mary Viegelahn, Chapter 13 Trustee San Antonio, Texas Although Trustee Viegelahn first produced this list for an ethics panel in 2019, it is a timely heads-up now. This list was gathered from Trustees across the country. Providing ECF credentials to an outside “firm” to allow them to file a bankruptcy for a debtor the attorney has never met or...
Members