Declaring Bankruptcy: Automatic Stay And How It Protects You From Creditors
U.S. Bankruptcy Code imposes something called an automatic stay the moment that a petition for bankruptcy is filed. The automatic stay will usually halt the commencement, enforcement or appeal of actions and judgments against a debtor from the creditors they owe money to that are attempting to collect these debts incurred prior to the bankruptcy petition. In addition, the automatic stay protects property of the bankruptcy estate itself from collection actions and proceedings.
If a creditor violates the automatic stay are voided out. Any violation of the stay may cause the violating party to incur damages for the violation. But, like every complicated law, there are exceptions. A creditor may be permitted to take their collateral if they obtain permission from the court first. They'll get this by filing a motion for relief from the automatic stay.
The court will either grant the motion or provide security to the creditor, ensuring that the value of their collateral won't decrease during the stay. Without the protection provided by the automatic stay creditors could hypothetically race to the courthouse in order to try to collect from a debtor. If this happened, and let's say that a debtor's business was simply facing just a temporary crunch, it might not survive a "run" by creditors when their business could otherwise be salvaged. A run may also result in waste and it might be unfair to similar creditors that are owed money too.
There are three kinds of avoidance actions, and all of these are intended to limit the risk of the legal system prompting the downfall of a financially unstable debtor who hasn't yet declared bankruptcy. The bankruptcy system will generally reward creditors who continue extending financing to debtors and will discourage creditors from ramping up their debt collection efforts.
Even though these rules seem simple, a few exceptions exist in each category of avoidance action.
If a creditor violates the automatic stay are voided out. Any violation of the stay may cause the violating party to incur damages for the violation. But, like every complicated law, there are exceptions. A creditor may be permitted to take their collateral if they obtain permission from the court first. They'll get this by filing a motion for relief from the automatic stay.
The court will either grant the motion or provide security to the creditor, ensuring that the value of their collateral won't decrease during the stay. Without the protection provided by the automatic stay creditors could hypothetically race to the courthouse in order to try to collect from a debtor. If this happened, and let's say that a debtor's business was simply facing just a temporary crunch, it might not survive a "run" by creditors when their business could otherwise be salvaged. A run may also result in waste and it might be unfair to similar creditors that are owed money too.
There are three kinds of avoidance actions, and all of these are intended to limit the risk of the legal system prompting the downfall of a financially unstable debtor who hasn't yet declared bankruptcy. The bankruptcy system will generally reward creditors who continue extending financing to debtors and will discourage creditors from ramping up their debt collection efforts.
Even though these rules seem simple, a few exceptions exist in each category of avoidance action.
About the Author:
Mallory Megan is employed by a debt collection agency. She also does articles on business, finance, the credit industry, and collection agencies.
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