Author Question: Discuss the consequences a creditor may face for violating the Automatic Stay. Who has the burden of ... (Read 33 times)

WhattoUnderstand · **on:** Aug 3, 2018

Discuss the consequences a creditor may face for violating the Automatic Stay. Who has the burden of proof in this type of situation? Are all bankruptcy debtors entitled to recover damages in situations where a creditor has violated the provisions of the Automatic Stay?

What will be an ideal response?

Question 2

What is the Automatic Stay and what effect does it have on a bankruptcy case? How does the Automatic Stay protect both debtors and creditors? How long does the Automatic Stay generally last? Be sure to describe the types of cases that are stayed in a typical consumer bankruptcy case.

What will be an ideal response?

allisonblackmore · **Reply #1 on:** Aug 3, 2018

Answer to Question 1

The sanctions for violating the Automatic Stay are found in 11 U.S.C. 362(k), under which, an individual debtor who is injured by a willful violation of the Automatic Stay provisions of 362 is entitled to recover actual damages, costs, and attorney's fees as well as punitive damages in some cases. This section of the Bankruptcy Code, however, only applies to individuals, so a corporation may not recover damages. The debtor has the burden to prove that the creditor violated the Automatic Stay.

Answer to Question 2

The Automatic Stay typically terminates 90 to 100 days after the bankruptcy petition is filed in no asset cases filed under Chapter 7 of the Bankruptcy Code. In Chapter 13 cases, however, the Automatic Stay remains in effect for the duration of the matter. Automatic Stay is an injunction against the debtor's creditors and claimants that stops all court lawsuits and collection efforts against the debtor while the bankruptcy case is pending.